2019 - 09 - 13 Closing Argument Transcript

In the Matter of:
Upstream Addicks and Barker (Texas) Flood-Control

Reservoirs
September 13, 2019

Trial
Vol. 11
Condensed Transcript with Word Index
For The Record, Inc.

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Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 9/13/2019
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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 1 APPEARANCES CONTINUED:
2 2
3 IN RE: UPSTREAM ADDICKS AND ) Master Docket No. 3 WILLIAMS, KHERKHER, HART, BOUNDAS, L.L.P.
4 BARKER (TEXAS) FLOOD-CONTROL ) 17-9001L 4 BY: EDWIN A. EASTERBY, ESQ.
5 RESERVOIRS. ) 5 8441 Gulf Freeway, Suite 600
6 _________________________________) 6 Houston, Texas 77017
7 7 (713) 230-2200
8 8 [email protected]
9 Courtroom 5 9
10 Howard T. Markey National Courts Building 10 VB ATTORNEYS
11 717 Madison Place, N.W. 11 BY: VUK VUJASINOVIC, ESQ.
12 Washington, D.C. 12 6363 Woodway Drive, Suite 400
13 Friday, September 13, 2019 13 Houston, Texas 77057
14 10:00 a.m. 14 (713) 224-7800
15 Trial Volume 11 15 [email protected]
16 16
17 BEFORE: THE HONORABLE CHARLES F. LETTOW 17 ON BEHALF OF THE DEFENDANT:
18 18 UNITED STATES DEPARTMENT OF JUSTICE
19 19 ENVIRONMENT & NATURAL RESOURCE DIVISION
20 20 BY: WILLIAM SHAPIRO, ESQ.
21 21 501 I Street
22 22 Suite 9-700
23 23 Sacramento, California 95814
24 24 (916) 930-2207
25 Susanne Bergling, RMR-CRR-CLR, Reporter 25 [email protected]
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1 APPEARANCES: 1 APPEARANCES CONTINUED:
2 2
3 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS 3 UNITED STATES DEPARTMENT OF JUSTICE
4 AND BARKER (TEXAS) FLOOD-CONTROL (RESERVOIRS): 4 ENVIRONMENT & NATURAL RESOURCE DIVISION
5 BURNS CHAREST, L.L.P. 5 BY: KRISTINE S. TARDIFF, ESQ.
6 BY: DANIEL H. CHAREST, ESQ. 6 53 Pleasant Street
7 LYDIA A. WRIGHT, ESQ. 7 Fourth Floor
8 LARRY VINCENT, ESQ.9 8 Concord, New Hampshire 03301
9 900 Jackson Street 9 [email protected]
10 Suite 500 10
11 Dallas, Texas 75202 11 UNITED STATES DEPARTMENT OF JUSTICE
12 (469) 444-5002 12 ENVIRONMENT & NATURAL RESOURCE DIVISION
13 [email protected] 13 BY: LAURA DUNCAN, ESQ.
14 [email protected] 14 MAYTE SANTA CRUZ, ESQ.
15 15 601 D Street, N.W.
16 IRVINE & CONNER, L.L.C. 16 Third Floor
17 BY: CHARLES W. IRVINE, ESQ. 17 Post Office Box 7611
18 4709 Austin Street 18 Washington, D.C. 20044
19 Houston, Texas 77004 19 (202) 305-0466
20 (713) 533-1704 20 (202) 305-0506 (Facsimile)
21 [email protected] 21 [email protected]
22 22
23 23
24 24
25 25
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1 APPEARANCES CONTINUED: 1 PROCEEDINGS
2 2 - - - - -
3 UNITED STATES ARMY CORPS OF ENGINEERS 3 THE COURT: Please be seated.
4 GALVESTON DISTRICT, OFFICE OF COUNSEL 4 Good morning.
5 BY: JAMES E. PURCELL, ESQ. 5 ALL COUNSEL: Good morning, Your Honor.
6 2000 Fort Point Road 6 THE COURT: The case before the Court this
7 Suite 369 7 morning is the Upstream Addicks and Barker (Texas) Flood
8 Galveston, Texas 77550-1229 8 Control Reservoir case, Number 17-9001.
9 (409) 766-3822 9 Mr. Charest, Mr. Irvine, would you introduce
10 [email protected] 10 yourselves and your colleagues, please, as counsel for
11 11 the 13 test properties.
12 12 MR. CHAREST: Yes, sir. Daniel Charest for the
13 ALSO PRESENT: 13 Upstream Plaintiffs. Next to me is Charles Irvine, and
14 Matt Boles, IT, Plaintiff 14 going around the table, we have Vuc Vujasinovic, Armi
15 Dawn Miller, IT, Defendant 15 Easterby --
16 16 MR. EASTERBY: Good morning, Your Honor.
17 17 MR. CHAREST: -- Lydia Wright, Larry Vincent, and
18 18 our colleague, Matt Boles, who is our AV tech who is
19 19 going to help us today.
20 20 THE COURT: Welcome.
21 21 And, Mr. Shapiro, would you introduce yourself as
22 22 counsel for the Government and introduce your colleagues
23 23 as well.
24 24 MR. SHAPIRO: Good morning, Your Honor. Bill
25 25 Shapiro with the United States Department of Justice.
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1 INDEX 1 With me is Kris Tardiff with the Department of Justice.
2 2 MS. TARDIFF: Good morning, Your Honor.
3 CLOSING ARGUMENT PAGE 3 THE COURT: Welcome.
4 MR. CHAREST 3146, 3296 4 MR. SHAPIRO: Dawn Miller, Mayte Santa Cruz --
5 MS. WRIGHT 3209 5 MS. SANTA CRUZ: Good morning, Your Honor.
6 MR. EASTERBY 3220 6 MR. SHAPIRO: -- Laura Duncan.
7 MR. VUJASINOVIC 3225 7 And from the U.S. Army Corps of Engineers, Office
8 MR. SHAPIRO 3229, 3315 8 of Counsel, James Purcell.
9 9 MR. PURCELL: Good morning, Your Honor.
10 10 THE COURT: Good morning.
11 11 We are here for a closing argument in the
12 12 upstream case, and with that, because the Plaintiffs
13 13 have the burden of proof, Mr. Charest, would you begin.
14 14 MR. CHAREST: May it please the Court, Your
15 15 Honor.
16 16 THE COURT: I will say the Court has looked at
17 17 the briefs and has looked at everything except all of
18 18 the most recent filing yesterday or -- well, it was
19 19 yesterday, late, on the motion for -- by the Plaintiffs
20 20 to supplement the record. So I have not quite finished
21 21 that.
22 22 But go ahead, Mr. Charest.
23 23 MR. CHAREST: Well, that was my first question,
24 24 was more a point of order. Does the Court want to
25 25 address those evidentiary issues or just get right to
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1 the closings here? 1 built the Addicks and Barker Dams, the Buffalo Bayou
2 THE COURT: The Court will defer acting on those 2 project, for the sole purpose of -- and I'll quote from
3 motions. There are a couple of motions, one by the 3 Joint Exhibit 5, the Definite Project Report -- "for the
4 Government to correct the trial record and the other by 4 protection of the City of Houston, Texas, and the
5 the Plaintiffs to supplement the trial record, and the 5 Houston ship channel." The sole beneficiary of this
6 Court will defer those until the disposition of the 6 project is the properties downstream of the dams.
7 merits of the case. 7 That's confirmed in testimony by both Mr. Long and
8 MR. CHAREST: Very well, sir. I do intend to 8 Mr. Thomas, and the documents go on on that at length.
9 refer to the two documents during this closing. 9 In the Water Control Manual, at page 7-4, it
10 THE COURT: That's fine. 10 says -- and I'll read the quote to the Court -- "In
11 MR. CHAREST: Thank you, sir. 11 keeping with the primary objective of flood control for
12 THE COURT: They are before the Court. 12 Addicks and Barker Reservoirs, the general plan for the
13 MR. CHAREST: Thank you. 13 reservoir regulation, will be to operate the reservoirs"
14 And there was one -- this is a -- I will make an 14 -- that's the upstream area -- "in a manner that will
15 oral motion as an agreed point. We noted that in the 15 utilize, to the maximum extent possible, the available
16 transcript, sir, on page 2960, at line 22, to 2961, line 16 storage to prevent the occurrence of damaging stages on
17 4, there's a reference to Micu 0016, Micu 16, and it 17 Buffalo Bayou" -- that's the downstream area -- "within
18 should have been Micu 61. The numbers are inverted, and 18 the limits placed by the constraints of the project
19 we didn't note that the first time around, and I believe 19 operations," meaning they will store as much water as
20 that's unopposed, to change that in the record. 20 physically possible upstream to protect those homes
21 MR. SHAPIRO: That's correct. We do not oppose 21 downstream, and that's by design, by operation exactly
22 that. 22 what happened in this case here.
23 THE COURT: All right. Thank you, Mr. Shapiro. 23 The other point to understand is that the Corps,
24 We will take that into account. 24 because it's a congressional mandate, cannot change
25 MR. CHAREST: Thank you, sir. 25 those operations without going back to Congress. So
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1 Well, first, before we begin, sir, I want to just 1 even -- and that's cutting ahead to later on in the
2 note for the record and for everyone that may be 2 argument, but if Harvey happened again today, the Corps
3 listening at home that it is nearly, almost to the day, 3 would do the exact same steps. There is no discretion
4 two years since we filed the first upstream case under 4 allowed. They would have done the same thing because
5 the Micu case, and while people that are not involved in 5 that is the congressional mandate.
6 litigation would think that two years is a long time, I 6 The second key point, the overarching point on
7 would commend everybody here, both sides and the Court, 7 this is the operating design, the operating concept of
8 and thank the Court for getting us here so quickly. 8 the dam, which was to impound stormwater on private
9 And I want to recognize also, as the Court had me 9 property as part of the reservoir that was designed for
10 introduce everybody, we had an excellent team together 10 the dam of this size.
11 for the Plaintiffs, both here in the courtroom and the 11 Could you do the graphic, please? What do I need
12 folks, particularly the trial paralegals, back at home 12 to do here? Thank you.
13 in the office. I want to recognize them. 13 So when the Corps designed the dam, it used as
14 THE COURT: I'm struck by the fact that this 14 its design storm the Hearne Storm from 1899, which was
15 courtroom is so much smaller than the one in Houston 15 35.1 inches of rain over 104 hours. Rather than acquire
16 that we are probably a little cramped from your 16 sufficient land to occupy -- to allow that storm pool to
17 perspective, Mr. Charest. 17 occupy government-owned land, the Government used the
18 MR. CHAREST: Well, I will try not to sit in 18 1935 storm to decide where to draw the takings line.
19 Mr. Shapiro's lap when he's doing his argument. 19 And so --
20 So the core point, the two central tenets that I 20 THE COURT: Well, that poses a question --
21 think in this case that are important to understand from 21 MR. CHAREST: Yes, sir.
22 the beginning all the way through the end are these: 22 THE COURT: -- because the 1940 final design
23 number one, the purpose of the dam, and number two, the 23 appeared to take the lesser storm. The Court was well
24 operating concept of the dam. 24 aware of the Hearne Storm and the volume of water,
25 By congressional mandate, the Corps of Engineers 25 rainfall, and so on that would be generated by such a
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1 storm. 1 THE COURT: The Government would take the
2 MR. CHAREST: Well, that's not entirely right, 2 position that the eighties enhancement to the
3 sir. I think for the building of the dam, the design of 3 impoundments, if you will, or the dams themselves did
4 the dam, the Government used the Hearne Storm. For the 4 not actually raise the effective level of the pool
5 acquisition of land -- a separate question -- it used 5 behind the dams because the spillways -- the auxiliary
6 the 1935 storm. So it wasn't that it built the dam that 6 spillways on each footing at the ends of the dams were
7 was big enough for the 1935 storm. It built the dam 7 not actually increased. They were hardened but not
8 that was big enough for the Hearne Storm and intended to 8 increased. Is that correct?
9 occupy water for the Hearne Storm. 9 MR. CHAREST: That is definitely the Government's
10 THE COURT: I thought it built the dam under the 10 position, and, in fact, liability in this case and what
11 1935 storm criteria plus three feet. 11 I'm talking about here doesn't necessarily depend on the
12 MR. CHAREST: No, sir. That was only for the 12 increase in size of the dam, because what that did was
13 land acquisition decision. 13 it posed additional risk between, say, like that red
14 THE COURT: Ah. 14 line and the top of the gray line, and the fact is the
15 MR. CHAREST: That is not for the dam design -- 15 Hearne Storm was roughly the equivalent of the Harvey
16 the dam design. The design storm for the size of the 16 storm.
17 structure was absolutely the Hearne Storm, and that's 17 So that additional work doesn't matter so much in
18 the -- that's the -- not that this is a fault issue, but 18 terms of our case, but what does matter for our case was
19 that was where the -- that decision is what imposed on 19 the addition of the gates, which absolutely imposed more
20 the private property the risk of flooding, 20 water upstream, closing several gates, and the
21 fundamentally, because when you build the dam, a 21 additional flow on the gates that are -- that were
22 structure -- here we go, I don't really need to point 22 openable.
23 there, but it's okay -- when you build a structure big 23 And so the bulwarks of the side and the increase
24 enough for the Hearne Storm but you only buy land for a 24 in the structure, making the structure bigger, doesn't
25 smaller storm, you have, by design and intent, exposed 25 necessarily impose more water, because the water didn't
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1 these private properties to flooding risk. 1 quite get to that level except at the northern part of
2 And the point that the Court asked -- let me see 2 -- I think it was Addicks we saw. And the part that
3 if I have it here. It's in the Definite Project Report 3 went around there we don't think is all that relevant
4 where they talk about the size of the storm being the 4 vis-à-vis the pool height, but the decision to change
5 Hearne Storm for the structure, and then they make a 5 the gates from one that would just deflect -- hold
6 second decision, okay, but for the land, we are only 6 water, detain it, and let it pass through to one that
7 going to use the 35 plus three feet. So you're right 7 would stop water and hold it for an extended period of
8 about that, but it's not the size part. It's only the 8 time, that was a key decision that the Corps made that
9 land part. 9 did impose even more risk on the upstream properties.
10 THE COURT: Thank you. 10 Does that address your question?
11 MR. CHAREST: Yes, sir. 11 THE COURT: Yes.
12 And then going forward, through different 12 MR. CHAREST: All right.
13 modifications to the structure, including putting gates 13 THE COURT: At some point I will want to ask
14 in and -- this is not working, Matt -- okay, including 14 about the -- well, I think of the sinkage, actually, of
15 putting gates on the outlets, building up the auxiliary 15 the land in this area, because it appeared to change the
16 spillways, and making the main body of the structure 16 elevations somewhat, especially of the footing areas on
17 higher, number one; deciding to restrict the outflow 17 the fringe or the sides of the dam. Is that correct?
18 over time from -- to now just a max of 2000 cubic feet 18 MR. CHAREST: The subsidence question? Is
19 per second, number two; and number three, learning more 19 that -- are you talking about subsidence and its effect?
20 about storm science and how to build a more safe dam, 20 THE COURT: Yes.
21 the Government effectively raised even the level from 21 MR. CHAREST: Well, again, I think -- I am
22 the Hearne Storm up to what we now in the modern day 22 getting over my skis in terms of hydrology here, to be
23 call the spillway design flood, and still imposing risk 23 sure, but my understanding is that the amount of water
24 on top of more private properties. Again, that's the 24 that passed around the northern part of Addicks was
25 operating concept. 25 immaterial in terms of the overall pool level, and so
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1 while the Government did note subsidence and we had some 1 Now, the Government will tell you, well, they're
2 conflicting testimony from the government, you know, 2 thinking about a different structure, and, therefore,
3 witnesses about how much water was going around the 3 these documents are irrelevant. Well, the -- what
4 corner there, from our perspective, we treated that as 4 the -- the form of the structure doesn't really affect
5 if it didn't exist, because it didn't affect the pool 5 the meteorology is our point, and so when they are
6 fundamentally. 6 talking about the details behind the storm and learning
7 If the dam had gone higher and had gone over the 7 about whether this type of storm is valid to use for a
8 spillways as designed in terms of, like, emergency 8 design storm in the area, we think these documents are
9 releases and that sort of thing, if a flood had gone 9 relevant, which is an issue for --
10 higher, then the exact height or not of those -- of the 10 THE COURT: The documents, as the Government
11 shoulders of the dam would be much more relevant, but 11 points out, seem to relate to a proposal by the Harris
12 since it went up to the lip but not over, it's less 12 County Flood Control District. Is that correct?
13 relevant in our view from the perspective of the impact 13 MR. CHAREST: That is correct, sir. The Harris
14 of the dam. 14 County Flood Control District -- I'm going to -- to
15 THE COURT: Thank you. 15 answer that question, I'll switch to Exhibit A, please,
16 MR. CHAREST: Yes, sir. 16 if you would, Matt, and turn to page 14, Bates number
17 And so going back to the operating concept, by 17 14.
18 only acquiring land for the 1935 storm but building a 18 Basically the documents were rejecting a proposal
19 dam that was much higher and effectively even higher 19 by the Harris County Flood Control District to use a
20 than that, the Government accepted the risk as part of 20 smaller design storm, but at the bottom, the Corps says
21 its operating design that it would flood private 21 that such a rainfall, talking about the Hearne Storm, is
22 property as part of a dam, a permanent structure within 22 considered as likely to occur with a frequency of once
23 the contour lines that it was designed to hold. And 23 every 50 years, and by contrast, the rainfall, to the
24 it's a really important -- I'm glad you asked the 24 extent of the Authority's assumption, is believed likely
25 question, because it's really important. The dam from 25 to occur only once every 14 years.
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1 its day-one inception was designed to hold the Hearne 1 And so they're rejecting the Authority's view
2 Storm, that red space there, which means that every 2 because they thought it was not frequent enough, and the
3 private home within that contour line was within the 3 Corps at that time believed that the Hearne Storm would
4 expected result of this dam. 4 be with a frequency of every 50 years. And by the way,
5 And Ms. Johnson-Muic quoted -- 5 if you do the math, you go from Hearne in 1899, then you
6 THE COURT: Well, I don't know about expected. 6 have Allison and then Claudette and then Harvey, so they
7 It depends on the frequency of such storms. It was 7 underreported it. They underexpected it, actually,
8 certainly conceptually possible. 8 because you have four storms of that size in 70 years --
9 MR. CHAREST: Sure, sure, yeah, and the -- well, 9 no, sorry, a hundred years.
10 we can talk about that. I'll take that up right now if 10 So that's the -- to respond to the Authority,
11 you like, Your Honor, and we can go to Exhibit B from 11 that's what the Authority was doing, and the Corps
12 the documents we moved to admit, and they looked at that 12 rejected it because the storm that they thought was more
13 exact question about whether meteorologically it was -- 13 valid was the Hearne Storm. Again, to your question
14 the proper -- was it valid, a valid construct to move 14 about is it conceptually possible, it was more than
15 the Hearne Storm over the Addicks and Barker watersheds. 15 conceptually possible. They said it was the largest
16 THE COURT: The Hearne Storm, if the Court 16 probable storm to come into the area, and that's the
17 recalls correctly, was about 90 miles away on the Gulf. 17 point, the largest probable storm.
18 Is that right? 18 And going back, if you would, Matt, to Exhibit B.
19 MR. CHAREST: That's correct, yes, sir. 19 Just cut to the chase, on page 7 at the top, the
20 And if you, Matt, if you go to page -- where are 20 top paragraph, the conclusion -- after having looked at
21 we, 5? Page 5, please, of the doc, which is 250. 21 different aspects of three different criteria that they
22 At the bottom they start -- yeah, right there -- 22 determined were necessary to evaluate in order to
23 they start talking about whether or not it's a valid use 23 determine whether or not to use this storm, the
24 of the Hearne Storm -- whether using the Hearne Storm 24 conclusion was that a great -- the great storms -- the
25 was valid for the design, again, of a structure. 25 occurrence of a great storm like the Hearne Storm and
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1 the susceptibility of the Buffalo Bayou area to a storm 1 "ANSWER: Yes."
2 as great as the 1899 storm must be considered in 2 So that's the Corps' land purchase person talking
3 designing any flood control works in the Houston area, 3 about the way they view the setting of the takings line.
4 because Buffalo Bayou is -- to quote the Corps -- 4 If you set the takings line below the design level of
5 "susceptible" to a storm like the Hearne Storm, 5 that dam, you, the Corps, accept the risk that you will
6 susceptible meaning, of course, likely to bear. 6 flood above it, and that's what they did here. That was
7 So that's the notion of -- you know, the 7 the operating concept of this dam.
8 Government wants to imbue the issue of foreseeability 8 THE COURT: Well, let's talk a little bit about
9 with this periodicity question. That's, I think, an 9 the fact that the actual dams and attendant facilities
10 argument we don't have to undertake, because in my 10 were not precisely built under the 1940 specifications.
11 view -- and I think the law supports it -- if you build 11 There were a couple of elements that were elided.
12 a permanent structure designed to hold back water, as we 12 MR. CHAREST: Yes, sir. So that's a great point
13 showed, to the level of the Hearne Storm, and it never 13 and one I think I probably glossed over, but you're
14 rains, then there's no -- then that event has never 14 exactly right. In connection with having originally
15 happened, but the intended consequence, the first step 15 just sluice gates in the dam construction, the overall
16 under Ridge Line, the intended consequence is that the 16 project itself was designed to have these dams
17 dam was designed to hold back that water, and when the 17 effectively be funnels, if you will, that will then put
18 rain comes, it does exactly what it was designed to do, 18 water into channels that will do -- would transit the
19 fills the water up within the contour lines that the 19 water around Houston.
20 engineers that built it expected and planned for it to 20 Those additional plans were never completed, and
21 happen. 21 instead they converted these dams which were not built
22 Harvey was not a situation where the water was 22 to do -- not built to retain water in the way they were
23 rushing over the top, wild, out of control. It was, 23 into retention dams.
24 literally, by the book and as planned, and that's an 24 THE COURT: There also was the elimination of
25 important thing to remember. The Corps keeps talking 25 a -- I think of it as a levee, but in any event, a
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1 about, oh, well, we had, you know, a zero-sum game and 1 barrier for Cypress Creek on the north end of Addicks,
2 this big emergency, but there was no emergency. They 2 and at a given point with a given rainfall, the
3 never actually invoked the Emergency Action Plan, number 3 testimony was uniform that Cypress Creek would overflow
4 one; and number two, they had been planning for this 4 into Addicks, and that happened during Harvey. It
5 event for 70 years, and when it happened, they followed 5 happened presumably during other storms as well. To
6 the book and went by the book. 6 what extent did that affect what was going on respecting
7 And so the notion of it was unprecedented, well, 7 Harvey?
8 we'll talk about that in just a second, but that's -- it 8 MR. CHAREST: Well, you know, it -- you are
9 was well within their design scope, and they had a plan 9 absolutely correct about the Cypress Creek and the
10 for it, and they executed the plan, and they would do it 10 hydraulic effect of Cypress Creek overflowing into
11 again the exact same way tomorrow. 11 Addicks reservoir, and that had happened before, and it
12 And going back to where I am on the operating 12 did happen in Harvey, and will happen in every major
13 concept, Ms. Johnson-Muic agreed in trial to these 13 storm that tests the boundaries of these dams. So
14 questions (as read): 14 that's absolutely something to take into consideration.
15 "QUESTION: In the original construction of the 15 By eliminating the -- by eliminating the levee
16 Addicks and Barker dams, the government accepted the 16 that was going to be built for Cypress Creek, what the
17 risk of inundating private land when it set the original 17 Corps did, if I remember correctly, was they added
18 takings line for the Addicks and Barker reservoirs, 18 another foot of takings to the Addicks Dam to just sort
19 correct? 19 of make up for the difference. That's my memory.
20 "ANSWER: Yes. 20 Someone can correct me? Oh, I'm right. That's my
21 "QUESTION: And every decision thereafter -- 21 memory of that.
22 we're talking about not to acquire lands when you're 22 And so the Corps did something to address the
23 talking about upstream land of a dam -- involved 23 lack of the levee --
24 accepting a risk of flooding to some extent. At least 24 THE COURT: So they increased the amount of
25 to the extent the damn can hold water to that level. 25 government-owned land to take that into account. They
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1 did it at some point in the forties, presumably. 1 in terms of what word you want to use, but because there
2 MR. CHAREST: Correct, sir, when they did the 2 is obviously a man-made dam, it was from the original
3 land acquisition. They did not do a second round of 3 plan to use these spaces as additional storage capacity,
4 acquisition. There was one round of acquisition, but by 4 I have no question that we -- and they knew about the
5 the time they did the acquisition of land, they knew the 5 Hearne Storm back in '38 and earlier used it as the
6 Cypress Creek levee wasn't happening, and so they 6 reasonable, expected largest storm in the area. To me,
7 purchased a little more land to just -- and so instead 7 there's no question about whether you do foreseeability,
8 of 1935 plus three feet, it was 1935 plus four feet, I 8 intent, you know, predictability. That's our argument.
9 think, is my memory of it. 9 The Government has a few counter-attacks to that,
10 But the other aspects of the dam, the overall 10 the first one being a single flood. They keep urging,
11 Buffalo Bayou project as originally developed and the 11 look, there is only one flood ever happened, and,
12 parts that were removed absolutely put more pressure on 12 therefore, you can't -- you can't call it a taking.
13 the dams, meaning made the dams susceptible to carrying 13 I've looked at Stockton and Quebedeaux to say that
14 more and more water behind them and, therefore, imposing 14 that's incorrect.
15 more and more water upstream. 15 Stockton says that one actual flooding is enough
16 And so had, for example, the dams been built as 16 when the property is upstream of the dam, like us, below
17 designed, the retention aspect of the Addicks and Barker 17 the contour line to which the dam is designed to impound
18 Dams would not have been -- would not have been used so 18 water, like us, even if there has been but what
19 much and the -- 19 flooding, because the result is only that which the
20 THE COURT: Just to clarify the point, I take it 20 engineers intended the dams to achieve.
21 the channel that was to carry water from the dams south 21 So when the engineers, back in 1938, '39, '40,
22 of Houston to the Gulf, but avoiding Buffalo Bayou and 22 all the way to the -- when they finished construction,
23 the downtown Houston area and the ship channel entirely, 23 drew this dam out. They had the design storm in mind.
24 I take it that that wasn't built? What was the reason 24 How much water will this dam hold? Draw a line. This
25 it wasn't built? 25 is where we're going to go. Rather than purchase water
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1 MR. CHAREST: The best information we have on 1 to that level, they went down to the '35 storm and
2 that, sir, is that the dam was built around the time of 2 purchased only there, and that's that gap which is their
3 World War II, and it just was a budgetary issue 3 fundamental operating concept that we're talking about
4 fundamentally. That's my -- I don't know that we have 4 when we're talking about Stockton.
5 very solid facts on that, but that's my understanding 5 In Quebedeaux, it says effectively the same
6 based on inferences from the documents, and we don't 6 thing. "On the same basis, it's conceivable that a
7 contest that. 7 takings might lie when the Defendant, using a permanent
8 I mean, and what's a really good point actually 8 structure like the Addicks and Barker Dams, purposefully
9 to make more generally, we are not making the argument 9 floods a property but once and expressly reserves the
10 that the Government should have done X, Y, or Z. The 10 right to do so in the future. In this instance, it's
11 Government does what the Government does, and we just 11 conceivable that Defendant's actions may be viewed not
12 live with it. You know, we, the landowners, the 12 as a 'isolated invasion' but, rather, as reserving a
13 property owners, suffer the consequence of the 13 flowage easement or the affected property." That's
14 Government's decision, but we're not here telling the 14 Quebedeaux.
15 Government you should have done X, Y, or Z. This is not 15 And so that's what we think our cases are about,
16 a tort case at all. 16 is that you have a permanent structure that has proven
17 So our position, Your Honor, is that, 17 already that it is capable of putting federally retained
18 fundamentally, that design concept of when you build a 18 waters on private property -- for the benefit, by the
19 dam sufficient to hold back Hearne and water comes in 19 way, of downstream -- and it's done it once, we've seen
20 effectively the same size as Hearne and floods private 20 storms like this in the area, we know that the
21 property that was not previously condemned, that is 21 Government new about storms like this when it built the
22 enough for the foreseeability inquiry. Under Ridge 22 dam and built the dam for storms like this.
23 Line, it's intentional or foreseeable. There is words 23 And so for us the single-flood theory -- first
24 about predictability. In my mind, all these tests, they 24 off, the Supreme Court's already told everybody that
25 may have a little bit of varying inferences, you know, 25 seems to care that there's no hard and fast rules, it's
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1 all a multifactor test, and we should know that anyway, 1 part of what the Government did. They used our
2 so we should reject the single-flood theory anyway, but 2 property. They used the private property of upstream
3 even if it did happen, if there was such a thing, we 3 homes as a water -- as a detention pond to prevent
4 still satisfy it because of the intentionality around 4 flooding downstream.
5 the dam and the foreseeability around the water. 5 We talked a little bit already about the
6 And so I'm going to -- from here, having -- I was 6 periodicity, so I am going to rehash that a little bit,
7 supposed to do that very quickly, but those two key 7 but the -- I think those 1938 documents end the
8 points, I am going to try to walk through the Ridge Line 8 question, but even if those don't come in the record,
9 and Arkansas Game & Fish factors to try and flesh those 9 the --
10 out. 10 THE COURT: I don't necessarily think it makes
11 THE COURT: You seem to treat Ridge Line and 11 any difference whether it's a 50-year storm or a
12 Arkansas Game & Fish as having different tests. That is 12 775-year storm, because it happened in the Hearne case,
13 not necessarily so. 13 and it came close in a couple of these others,
14 MR. CHAREST: In fact, I was literally going to 14 Claudette, Allison, the Tax Day, and so on. Houston and
15 say the same thing. When I sat down getting ready for 15 the Gulf area is susceptible to those kinds of storms.
16 this, I put the Arkansas Game & Fish factors on one side 16 Now, they have increased in frequency over the
17 and I put the Ridge Line factors on the other side, and 17 past couple of decades, there's no doubt about that.
18 what someone on my team described looked like a mad 18 Whether it's climatological or not is another matter.
19 scientist, I circled them and connected the dots, and I 19 We don't need to go into that in this case.
20 think that you're exactly right. I think they are -- 20 MR. CHAREST: Well, I completely agree with you,
21 they are asking the same thing. 21 sir. I would just say that when I first saw the two A
22 I think analytically they might be different 22 and B documents about -- I call them Exhibit A and
23 because Ridge Line is more seriatim and Arkansas Game & 23 Exhibit B sometimes in my brain -- but the first one
24 Fish is a multifactor kind of balance, but 24 that talks about the 50-year periodicity, I thought that
25 fundamentally, I'm a trial lawyer, I think about facts, 25 was -- oh, my God, that's amazing, right? But the
3168 3170
1 and the facts that we've proven satisfy both of those 1 second one I think is actually more relevant, because it
2 tests completely. So that's -- I agree with you, Your 2 stops and it looks at the meteorological steps and it
3 Honor, that they are effectively the same type of test. 3 does an evaluation of is this type of storm likely to
4 So we talked already significantly about 4 happen over top of this very water shed? And over a
5 foreseeability and the -- you know, taking is 5 multipage analysis, it says yes.
6 foreseeable if it's the direct, natural, probable result 6 Now, the result of that is in the Definite
7 of the government action. Similarly, the intentionality 7 Project Report they say, oh, we are going to use the
8 of effects, both the Ridge Line and the Arkansas Game & 8 Hearne Storm to build the dam, but we're going to use
9 Fish factors. And as I've said now probably five times, 9 this other one -- this other one to set the takings
10 you know, when you build a dam designed to hold back 10 line. But when the Corps is making that decision, it's
11 water and the water comes and it holds back water, there 11 with the knowledge that, you know, years ago, they've
12 is no one that should be surprised by that. There is 12 already determined that the 1899 Hearne Storm is the
13 not any foreseeability issue. It was intended. It was 13 storm that is likely to happen. It's a big storm,
14 the predictable result and not incidental. 14 likely to happen within the area. So for me, again,
15 When I think about Ridge Line, that's my kind of 15 that's a -- that component of foreseeability is --
16 teaching -- when the light went off in my head with the 16 THE COURT: Let's talk a little bit about the
17 water flowing off the parking lot into the neighboring 17 fact that the Corps, starting in about '70 or '72,
18 complex, whatever it was, and, you know, that was a 18 seemed very well aware of that possibility --
19 government action, and maybe it was foreseeable, but it 19 MR. CHAREST: Absolutely.
20 wasn't intentional. It wasn't the -- it was an 20 THE COURT: -- and they tried to address it
21 incidental effect of the government taking or the 21 through a set of steps.
22 government action. 22 MR. CHAREST: Did you say you want me to try and
23 Our situation is as if, well, we were underneath 23 address it through a set of steps or the Corps did?
24 that parking lot and they just bulldozed us down and put 24 THE COURT: The Corps tried to address it through
25 tar over top of us. You know, that was the intentional 25 a set of steps.
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1 MR. CHAREST: Oh, well, absolutely. So, like, 1 the land at issue under Arkansas Game & Fish. It's a
2 we've talked a lot -- this is the next question really 2 little bit different.
3 on my chart, so we're in sync here, but the other issue 3 MR. CHAREST: Yeah, and/or the expected use under
4 that the Corps says is, oh, you only have to look at the 4 Ridge Line.
5 time of -- you only can look at the foreseeability at 5 THE COURT: Right, exactly. They're the same.
6 the time of the construction. I don't think that's 6 MR. CHAREST: In my mind -- yeah, I agree. So we
7 right for a couple different reasons. I'm not sure 7 spilled some ink talking about why reasonable
8 legally that's right anyway, but even factually, if you 8 investment-backed expectation does not apply here under
9 are looking at the foreseeability, when the Corps took 9 Preseault and those types of authorities. I'm not going
10 actions, we have to remember the dams were built in 10 to re-urge that here, the Court has seen the briefing,
11 1945-ish, around there, and then they were modified over 11 but for me, again, as a fact lawyer, we've achieved all
12 time, and every one of those modifications is another 12 of those -- we've ticked off all of those boxes, okay?
13 government action that imposes more and more threat on 13 And so on that point, in terms of what the
14 the land. 14 Plaintiffs knew and expected and wanted to -- and wanted
15 So I think you're right to look at when they 15 to get from their land, I mean, one of the purposes --
16 decided to restrict the flow, when they imposed -- when 16 well, just so the Court's aware, I'm going to kick over
17 they installed the gates and when they raised the 17 to Ms. Wright and Mr. Easterby and Mr. Vujasinovic
18 embankments. In every one of those steps, the 18 the -- as apply to each Plaintiff's -- you know, just a
19 foreseeability of this action should be re-evaluated. 19 little vignette for each one, so I am not going to
20 Even if you only look at the time of the government 20 get -- I am going to kind of stay at the top level for
21 action, you have multiple facets of the government 21 the whole group.
22 action over time. 22 But one of the points I wanted the Court to be
23 It wasn't like they built the dams and walked 23 aware of or to recognize from the -- from the site visit
24 away. They stayed over them over time and they operated 24 was not just visiting the homes themselves but driving
25 them consistently over time, so I think that 25 in and out of those neighborhoods, because I remember
3172 3174
1 foreseeability question, even if it needs to be tied to 1 personally, when I drove in those neighborhoods and
2 a factual sort of event, that we still have the ability 2 drove around there, it was -- aside from the fact that
3 to look over time. 3 the place had been wrecked by the flood, it was just
4 THE COURT: Well, there's a question of 4 like any other neighborhood.
5 foreseeability in terms of the property owners 5 You know, it's not like some backwater shanty or
6 themselves. I think that's part of the Government's 6 a house that's on stilts on a beach in a place that
7 point. If you buy a home on a property that you know is 7 expects to be flooded. There is no way the people that
8 susceptible to flooding, they're suggesting that 8 lived there -- you go around, you see the churches and
9 essentially eliminates government liability. 9 the schools and Starbucks and little shops and homes
10 MR. CHAREST: That is definitely an argument 10 everywhere in these gated communities, and there's no --
11 we've heard, but it's flawed for a bunch of different 11 I defy anyone to say -- someone just drop in there and
12 reasons, both legally and factually. 12 say, yeah, this is a place that probably will flood;
13 Legally, there's no, like, assumption of the risk 13 this is a place I expect to flood.
14 concept in takings that I'm aware of, and I've learned 14 If you -- you don't need to believe me to
15 from the best, and so fundamentally this knowledge -- 15 recognize that. You know because of their actions.
16 this notion of, like, oh, you came to the danger is 16 When they buy a home, where they place their family,
17 not -- is not one that the law recognizes as a defense 17 their most valuable possessions, probably their biggest
18 for the Government. 18 investment in that area, it's not because they're
19 But even if you went past that and said, well, 19 risk-takers. It's because they don't know about the
20 what did they know? Does it affect the reasonable 20 risk.
21 investment-backed expectation? In this case -- 21 And so this notion of, oh, they knew about it,
22 THE COURT: Now, the reasonable investment-backed 22 first off, factually, the Government so failed to prove
23 expectations would not necessarily apply in this case 23 that -- sorry, it was -- you know, leave aside the
24 because it's a physical taking. What would apply is the 24 expert getting kicked out, but I think the record was,
25 fact that you have to take a look at the character of 25 what, it was 160 people or something ever attended those
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1 meetings when you're talking about 70 years of 1 The Court will recall Plaintiffs' 46 established
2 effectively -- I won't say the word intentional, but 2 what we call the modern takings line, and what
3 obfuscation about what the dams really do. 3 Dr. Bedient did was he plotted that modern takings line
4 Every single Plaintiff testified under oath, 4 in yellow on both of these images, which are PDX 6 and
5 truthfully, uncontroverted, that they did not know about 5 PDX 7. So that line was established in the eighties --
6 that risk of being flooded by -- not street flooding 6 1980, in fact -- by the Corps when it was evaluating
7 and, you know, maybe the bayou -- maybe the bayou 7 whether or not it could or should buy more property and
8 overtops -- 8 what to do about the risk of flooding that it was
9 THE COURT: Well, it was interesting, because it 9 imposing on this nongovernment-owned land.
10 appeared to the Court that the streets were actually 10 And I pointed out -- first off, I think it's just
11 designed to carry stormwater. 11 remarkable that the takings line would have prevented
12 MR. CHAREST: Another thing that I learned, yeah. 12 the flooding from Harvey if it had been enacted. That's
13 THE COURT: And I was fascinated by that, because 13 just -- you can't not notice that.
14 the homes themselves, by local ordinance or whatever it 14 But more importantly, from the question of
15 is, had to be built higher than the street level. 15 foreseeability, this is the Government using its own
16 MR. CHAREST: Exactly right. So, then -- and 16 math and science and its own details and data to
17 then so the notion that you might have heard people talk 17 determine whether it should have set the taking line in
18 about, oh, you know, we know Houston's flood-prone or 18 1980, meaning there's no question whatsoever that it's
19 there's this whole section in the brief about Houston's 19 foreseeable that the flooding would have occurred to
20 flood-proneness, but the very point of that is when you 20 least to that yellow line, and every one of the test
21 go to these neighborhoods and you see there's drainage 21 property Plaintiffs and, in fact, the entire Harvey
22 ditches and -- it's not a place that you would expect to 22 flood pool is within that takings line, and that cannot
23 flood from a pool of water being imposed and impounded 23 go without notice.
24 onto your land, and that's -- it's a different type of 24 And then we have another one that I think is just
25 flooding that people might have been aware of generally 25 critical, Plaintiffs' 1597.
3176 3178
1 about Houston's flood-prone. 1 Matthew, show me 31, please.
2 And I think you're exactly right about the 2 And this is, as the Court will recall, a
3 streets. I didn't know that either, and once you 3 spreadsheet developed by the Corps talking about the
4 understand that the streets are part of the conveyance 4 likelihood of storms occurring, and at the top one,
5 system, it all kind of falls together. 5 these are facts where they're informing the people, the
6 But to loop back to the Court's first question 6 attendees at the meeting -- by the way, this is not a
7 about the knowledge of the homeowners and the 7 public meeting. This is a meeting with other emergency
8 foreseeability of a flood from there, the record is very 8 responders, not just regular citizens. "They are
9 clear, as applied to these particular 13, there's no 9 capable of putting the development underwater. This
10 knowledge about that, and the notion that there should 10 would require a major storm, but storms have occurred
11 be some sort of objective standard of everybody knew, 11 near our area that would have caused flooding off
12 you just need to drive through the neighborhood, as the 12 government-owned land in the Addicks and Barker
13 Court did, and see that that's not true. 13 Reservoir."
14 And you can look at that by -- you can support 14 Then go to 47, Matt, if you would. This is the
15 that by these Plaintiffs' very actions of buying a home 15 conclusion.
16 in that area, putting their families up and all of their 16 "They've never flooded off government-owned land,
17 worldly belongings in a place that they now know -- did 17 but after seeing the potential for flooding from the two
18 not then know -- is subject to flooding. So it's -- I 18 storms presented" -- and that's Allison and Claudette,
19 understand their job is to try to find every defense. 19 the study they did -- "we know it can and probably will
20 That one I find the most troubling, to be frank. 20 happen at some point in time." That's 2009, all right?
21 Now, going back to the prior question from the 21 So the reason the Corps wants you to focus on the
22 Court about the foreseeability from the Government's 22 Corps' knowledge -- the reason the Government wants you
23 perspective along the time -- 23 to focus on the Corps' knowledge back at the time the
24 Matt, can you show me opening slide number 9, 24 dams were constructed is because it's a little harder to
25 please. 25 just show absolutely they knew, because in 2009,
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1 absolutely they knew, but I think that the documents, 1 out of 13 of the test properties was due to the
2 the fact of construction using the Hearne Storm, and the 2 pool-induced flooding, the government-induced flooding.
3 recognition that the Hearne Storm could have happened 3 And under Sponenbarger, because the maximum level
4 over the watershed is enough, and I submit that it is 4 of flooding was induced by the Government, that is
5 enough. 5 enough for liability. And you don't have to believe me
6 And this to me, just to close out the 6 on Sponenbarger. The Government uses Sponenbarger in
7 foreseeability discussion, proves that the flooding is 7 the downstream case as an offensive weapon against the
8 not incidental or accidental. It was just a matter of 8 Downstream Plaintiffs saying, oh, look, they can't prove
9 time, and the Corps knew that from the beginning, that 9 that the maximum level was due to the Government and,
10 it -- from the beginning when it built, through the 10 therefore, they're out. The fact is both experts agree
11 middle when it modified, and at the time of Harvey, when 11 that the maximum level of flooding, which is the pool
12 it actually enacted its plan and followed it out, the 12 flood throughout the upstream area, was because of the
13 Corps intended to impose water upstream on private 13 government-induced pool flooding.
14 property because that's the design concept. 14 Now, check down from there. If we have to go
15 Can you play the video, please, which is 15 beyond and say eliminate all other causes, every other
16 Plaintiff's 2176, two excerpts. 16 cause, we can still do that. For 10 out of the 13 of
17 (Video played:) 17 the test properties, both experts, both sides agree that
18 "With that being said, this area is designed to 18 the only source of flooding was the pool, so that means
19 hold that water, if necessary. It's unfortunate for 19 only three are in dispute factually, and those three are
20 you-all, but that's how it's designed." 20 Burnham, Giron, and Micu.
21 "Did we know you would have five foot of water in 21 The Court will recall that Giron and Micu both
22 your home? We knew that if we got this event, there 22 live in the -- in Barker and on the south side of Barker
23 would be homes with water in them, yes." 23 on water courses that are fed by Buffalo Bayou. One is
24 (Video concluded.) 24 on Upper Buffalo Bayou and the other one is on -- excuse
25 MR. CHAREST: So that's the Government's 25 me --
3180 3182
1 spokesman, the Corps' spokesman saying we knew, because 1 THE COURT: Or that feed into Buffalo Bayou.
2 they did know. 2 MR. IRVINE: Willowford.
3 Unless the Court has any questions about 3 MR. CHAREST: Willowford, thank you.
4 foreseeability, I am going to turn to the but for 4 Well, the Buffalo Bayou comes in and splits
5 causation analysis. 5 between Upper Buffalo Bayou and the Willowford diversion
6 THE COURT: Yes. We ought to talk about riverine 6 channel, and they go into Barker, yes, sir.
7 flooding and the difference between Dr. Nairn and Dr. -- 7 THE COURT: Well, I was thinking about whatever
8 Bedient or Bedient. 8 it is, Langham Creek or whatever it is?
9 MR. CHAREST: Bedient, yes, sir. 9 MR. CHAREST: Langham Creek is on the top of
10 THE COURT: Bedient. I will get it right 10 Addicks --
11 eventually. 11 THE COURT: Right.
12 MR. CHAREST: Yes, I am happy to talk about that 12 MR. CHAREST: -- and what we're talking -- and
13 next. 13 Buffalo Bayou, the actual water course, is on the bottom
14 Causation, as the Court's aware, requires a but 14 of Barker.
15 for causation, meaning looking at the result with the 15 THE COURT: Okay.
16 government project and whether, without the government 16 MR. CHAREST: So we'll talk about those three in
17 project, the same or more flooding would happen. 17 some detail here for the Court.
18 As I said, I remember this distinctly when we 18 What Dr. Bedient did was he had looked at
19 talked about the opening, the Court, of course, expects 19 different types of flooding, evaluated the effect of
20 the Plaintiffs' expert to say all 13 test properties 20 those floodings on the 13 test properties and
21 flooded because of and only because of the government 21 throughout, and determined that those localized -- that
22 action. What was surprising to me when I saw the 22 those other two types of flooding did not cause flooding
23 report -- and I think surprising to the Court when you 23 at the test property locations.
24 heard it -- was that the Government's own witness 24 So for street flooding --
25 conceded that the maximum level of flooding across 13 25 Matt, can you show me Plaintiffs' 526, which is
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1 Dr. Bedient's report, at 48? 1 the place where it falls to somewhere else, all right?
2 For the street flooding, the Court -- well, the 2 And then the second type of flooding you'll think
3 Court already noted that the streets are designed to 3 about is the riverine flooding, where now it's, having
4 carry water, and really what it is is I think it's maybe 4 been conveyed to a main tributary, do those tributaries
5 a five-year storm or a two-year storm goes down the 5 come out of banks at all and impose flooding as that
6 drains and up to a hundred-year storm is conveyed by the 6 swell of water goes down into what is the reservoir?
7 streets, okay? And it's also not just a level. We have 7 So that first lump you'll see on the hydrographs
8 to think about it in terms of what time interval are we 8 is that localized and/or riverine flood, so water coming
9 talking about. So it's a hundred-year storm on a 9 down and building up on the ground and then being
10 one-hour interval? Yeah, yes. 10 conveyed out through the drainage systems.
11 And so what Dr. Bedient did was he looked and saw 11 And for the most -- I mean, for all of them --
12 what -- we can look at the top one and see the color 12 well, I'll use the ones that are uncontested so it's
13 code for 100-year is red, and we look at the bottom 13 just easier. You can look at Dr. Nairn's model and the
14 chart and the one-hour interval, and none of the 14 first chart will come up, it will come up, and then you
15 reported rains within the area are above the 100-year 15 will see a big spike like this (indicating), and the
16 flood. 16 question was, well, did the first one rise to the level
17 And so based on that, Dr. Bedient concluded that 17 of first floor or not? That was the, you know, the 10
18 there was no localized drainage, because the local 18 out of the 13 kind of thing we're talking about.
19 street conveyance that -- remember, Mr. Vogler was the 19 For 10 of the 13, even his model couldn't put
20 first one to talk about it, about flowing along the 20 water inside the house, all right? And for only three
21 streets? That conveyance was sufficiently robust to 21 out of 13, his model put water inside of the house on
22 deal with -- to deal with localized flooding like that, 22 the first lump. Everyone had water and much more water
23 to convey the water outward. 23 on the second hump, all right?
24 Now, Dr. Nairn, by contrast, didn't even look at 24 So I think there was one witness where that was
25 localized flooding. His model literally had no 25 drawn out more -- I forget which one it was, frankly --
3184 3186
1 drainings at all, and so the ability for the water to go 1 but talking to each one of them, and even in their
2 into subterranean drains and move away was ignored by 2 depositions, the fact is everyone would have seen water
3 Dr. Nairn. And so what does that do? It has the effect 3 come up, even up over the curb, but that's part of the
4 of, just in whatever amount, increasing the amount that 4 natural -- the designed plan for the water conveyance
5 is held in those neighborhoods, and that's an important 5 through the streets, because remember, you don't own up
6 consideration, because that's going to -- that theme 6 to the sidewalk, you own somewhere back, and that V -- I
7 will come up again later. 7 don't have a graphic for it --
8 THE COURT: Well, there was one property, just to 8 THE COURT: No, I understand.
9 help clarify the testimony, where there was street 9 MR. CHAREST: Yeah, you're with me. All right.
10 flooding, and then the flooding went down, and then the 10 So Dr. Bedient, again, he confirmed that the
11 pool flooding came and it went back up again. There was 11 rainfall wasn't sufficient to over -- to put a
12 about a 24-hour hiatus there. 12 surcharged condition on the localized drainage, but he
13 MR. CHAREST: So I think that -- 13 did more. He went and did the -- he visually observed,
14 THE COURT: I don't know which property it was, 14 as the Court saw, the elevation difference between the
15 though. Do you recall? 15 street and the home levels. He talked -- he had
16 MR. CHAREST: I think that probably was most of 16 eyewitness accounts. He reviewed -- he read the
17 the properties, frankly, sir, because what you had -- if 17 deposition testimony of all the witnesses.
18 you look at the hydrographs for all of these places, 18 They talked about they didn't have water during
19 you'll see one lump and then a big lump, all right? And 19 the rain period, but the water came when the rain
20 that first lump is -- this is -- again, I keep thinking 20 stopped, and that's really the overarching theme you'll
21 about how much I've learned about rain, but when I first 21 hear when you talk to these flood victims, is that it
22 started thinking about rain, I'd think about the rain 22 rained really heavy and the water got high in the
23 that falls on my head, on my rooftop, and lays in my 23 streets, and then it went down a bit. And then we
24 yard, okay? That is the type of rain that we're talking 24 thought we were in the clear, but then here it comes.
25 about for localized flooding. Does it get conveyed from 25 And that's the -- the "here it comes" is the pool
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1 backing up. So it's not rain that's falling on my head. 1 there's an embankment along the channel.
2 It's water that's being detained by the dam and being 2 MR. CHAREST: That's exactly right.
3 forced back up onto this private property, and that's 3 THE COURT: -- of Langham Creek. That's what the
4 when the sun is out and we're still getting flooded and 4 Court remembers.
5 everyone didn't understand why. And that's why. 5 MR. CHAREST: Well, the creek that's going past
6 Now, as to riverine flooding, give me -- 6 the airport is Bear Creek, but the -- but you're
7 Can you show me the Bedient -- the slides 4 and 7 right --
8 5? 8 THE COURT: Whatever it is.
9 We talked about how Dr. Bedient used the FEMA 9 MR. CHAREST: -- there was an embankment along
10 flood maps, which are the result of a U.S. Corps -- you 10 there --
11 know, a Corps of Engineers modeling on how and where you 11 THE COURT: Sorry. I apologize.
12 can extend -- you can measure flood levels. 12 MR. CHAREST: No, I just want to make sure that
13 And go to the next one, too, please. 13 we're all clear. I don't want to be called as being
14 Just so -- so what Dr. Bedient did was he had the 14 wrong.
15 flood profiles that are based on those maps, and he 15 But we know from visual observations and from the
16 picked a spot where there was a gauge, you know, the 16 testimony of Stacy Lesikar, who was there with her feet
17 hundred-year flood, the 500-year flood, and wherever the 17 on the ground and took videos, that during the peak
18 Harvey gauge was, and then interpolated it down to the 18 level of Bear Creek going past, you saw the water
19 location of the house and concluded that, as to every 19 rushing past, coming up and hitting that little berm,
20 one of the sources of riverine flooding, none of them 20 and not going over top, and then the testimony also was
21 affected the test properties, because all of the 21 that when the water did come, it came across the field
22 riverine flooding -- before the rivers were impacted by 22 from the south, right, because that was the water
23 the dams, by the pool backing up, none of the them were 23 advancing up over the pool.
24 high enough to reach the -- to reach the home 24 And so while Dr. Bedient's step-by-step approach
25 structures. And that's fundamentally what he did. 25 didn't really work for the airport because the airport
3188 3190
1 He did -- he used not the FEMA maps but the 1 was so large, we can -- he concluded, because of these
2 profile from Tax Day for the folks up at Langham, 2 other factors, that it did not flood from riverine
3 because that was a more recent -- a more recent set of 3 flooding.
4 data, and there had been some work done on the Langham 4 THE COURT: All right. Thank you for correcting
5 tributary that post-dated the FEMA maps, and so he 5 the Court.
6 conceded that was the better -- 6 MR. CHAREST: Yes, sir. Well, sorry to -- assist
7 THE COURT: The Court remembers that testimony 7 the Court. How is that?
8 especially with regard to the airport. Is that correct? 8 THE COURT: Correcting works.
9 MR. CHAREST: The airport was -- we spent some 9 MR. CHAREST: So going back to -- and so then the
10 time talking about the airport, because according -- 10 other way that Dr. Bedient confirmed that there was no
11 that's not what I was talking about. So to answer your 11 riverine flooding was he looked at the AECOM report.
12 question quickly, no. 12 Can you just show the cover of it, Matt, so
13 The discussion that we had about the airport was 13 we all recall?
14 his approach didn't quite fit the airport because what 14 The LOE, Exhibit Number 7, which we looked at
15 he does is he pegs the spot of the property, and then 15 specifically for Lakes on Eldridge but also the
16 because -- and he uses that to interpolate along the 16 tributaries in and around at Turkey Creek and Langham
17 way. 17 Creek, and confirmed that there was -- while there was
18 Go to the prior slide, Matt, if you would. 18 water in the streets, the streets worked as intended and
19 If I may, so you see he had the gauge, and you 19 conveyed the water away into the pool, and it wasn't
20 pick the number, and then you go down and interpolate 20 until the pool backed up and got to the -- got to the
21 down to where the location is. Are you with me? But 21 private property that Langham Creek and Turkey Creek and
22 the problem was the airport's location was so large that 22 the streets of Lakes on Eldridge were, in fact,
23 his methodology showed the house -- the slabs being 23 affected. And so that was another confirming source
24 below the water level there at -- 24 that Dr. Bedient used.
25 THE COURT: Well, it was, because there was -- 25 Now, by contrast, rather than using the existing
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1 Corps-developed maps and data and ground truth 1 property hits government-owned lands, remember for his
2 observations and gauges that are run by the Government, 2 no-project run, he filled in those channels, so
3 Dr. Nairn did the opposite. Dr. Nairn made a model and 3 effectively walled off the ability of the water to get
4 used his model to run a hypothetical storm and measure 4 out of the neighborhoods and into the property, into the
5 what that would look like, and it's important to start 5 government-owned land.
6 from the beginning about what we're talking about with 6 And so when you put too much water in and don't
7 these models. 7 let it get out, the -- you don't have to be a
8 The model is very precise insofar as it will give 8 hydrologist to know you're going to have too much water
9 you to the -- you know, the nth degree of decimal 9 in the neighborhoods, and that's what happened, all
10 points, but that doesn't mean it's accurate. Dr. Nairn 10 right? And even with that, you can only put water on
11 admitted during the voir dire portion of his testimony 11 three people's houses anyway.
12 that the average rate of error for the model was plus or 12 So I'll talk about Micu and Giron first because
13 minus a foot, all right? On top of that, he said that 13 they're both together. I keep doing the map from my
14 when he measured his errors, there were half a foot to 14 perspective, and I should do it from your perspective.
15 1 1/2 foot errors throughout the model; 40 observations 15 They're both together along the Upper Buffalo Bayou.
16 exceeded 1.1 feet; ten exceeded two to three feet 16 And so the first point there is Dr. Nairn's model
17 variation between his model and observed locations, 17 overstated the amount of water in Upper Buffalo Bayou by
18 observed heights. 18 three feet. Now, why is that important?
19 And that's just talking about how good a model 19 Again, we say he had too much water too early,
20 is, and models like this are not used -- wow, already -- 20 and remember, we went through and we went through every
21 models like this -- I mean, they can use them for 21 one of the main tributaries coming into Buffalo Bayou.
22 whatever they want to, but typically they're used for 22 You remember the exercise, I think, Your Honor. And
23 theoretical, trying to learn, if we do this or that, 23 every time Dr. Nairn -- there was only one, by the way,
24 what will happen? 24 that matched, which was Mason Creek. The only other
25 THE COURT: I was going to say, they're 25 inlet to -- the major inlet into Barker Reservoir is
3192 3194
1 predictive in a sense. 1 Upper Buffalo Bayou.
2 MR. CHAREST: Correct, correct. They're not -- I 2 So he got one correct, and we know that Barker
3 think it's a misapplication of the model -- we talked 3 Reservoir was overfilled at the time of the peak by a
4 about it at length within our team -- whether to model 4 foot and a half, which is a lot of water for that whole
5 or whether use actual observed date, and we determined 5 entire reservoir. So if all the water coming in one
6 to use actual observed data. 6 major tributary was correct and the other one is
7 The other issue that I think on a global level 7 overstated by three feet, that makes sense, because that
8 that we have with Dr. Nairn's model is the key inputs, 8 additional volume of water has to come in somewhere, and
9 and I will put it this way. It's our position that the 9 there it is.
10 water model, the rainfall aspect of the model -- which, 10 Dr. Nairn's response was multifaceted and quite
11 remember, he had to go and change the source code of the 11 interesting. First, even though every other time there
12 program to even allow it to use that type of water 12 was a conflict with a gauge in his model he said the
13 input -- was overstated, meaning it cherry-picked -- 13 gauge was correct, for this one, he says, oh, my model's
14 rather than using gauges from within the Addicks and 14 correct and the gauge is wrong. Now, we all -- we
15 Barker watershed from what is, the testimony was, the 15 talked a long time about the size of the hole, the
16 best water moderating system in the world -- in the 16 bottom of the tube, and the bits of cork, and I think we
17 country, he used pickle jars, right, but he also used 17 all had some fun with that testimony, but what I -- what
18 data from 30 miles away where the rain was much more 18 I realized after sort of the fog of the battle was over
19 intense and then carried that rainfall into the data 19 was the Government had the person in charge of those
20 that he used over the Addicks and Barker watershed. 20 gauges on the stand and chose not to ask that person
21 So our view is that there was too much water too 21 anything about that particular gauge and instead left it
22 soon under Dr. Nairn's model, and that bears out -- and 22 to Dr. Nairn to dream up an error that we don't think
23 I will tell you why it bears out in a second, but the 23 actually existed, and certainly he doesn't have any
24 other aspect -- so you have too much water coming in, 24 facts to support it, to say that the gauge was wrong and
25 and then on the other side of it, where the private 25 he was right.
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1 You know, and I just want to -- that, to me -- I 1 locations, and only the Government-imposed water flooded
2 was like, oh, I really should have said that before, so 2 these properties, because that's what the facts show.
3 I'm saying it now. There's -- if they thought the gauge 3 Now, the only other person that's out there is
4 was really wrong, they could have asked -- is it 4 Ms. Burnham. You will remember Ms. Burnham with the
5 Fitzgerald? 5 home tours thing, which I had never heard of before, but
6 MR. IRVINE: East. 6 you will remember her. She's up by Langham Creek, and
7 MR. CHAREST: East, Mr. East, about that, and 7 the biggest concern we have -- well, there's two, but
8 they did not, and I think that's really relevant. 8 this is really the effect of the second sort of "thumb
9 And so you have this overstated amount of water 9 on the scale" point that I made earlier, where
10 coming in, and what Dr. Bedient did was he noted the 10 Dr. Nairn's model was to block off the tributaries as
11 difference between the gauge and the model level, and he 11 they come in, and you have Langham Creek coming in right
12 said, okay, well, then, to correct that, I just need to 12 by Bear Creek, the neighborhood, and in Dr. Nairn's
13 drop it down by three feet to true the model to reality, 13 model, there's effectively a wall right there, and that
14 and if I do that same correction and you apply it to 14 has the effect of bouncing all the water back into
15 both Micu and Giron, guess what? No flooding. So if 15 the -- pushing the water into the neighborhoods and, we
16 you take away that overstated three feet and follow the 16 say, elevating the amount of riverine flooding in his
17 contours down, you take away the impact downstream on 17 model that he then called "true riverine flooding."
18 these folks. 18 Can you show, Matt, PDX 13 and 14 to explain what
19 And then the other thing we did was we said, 19 I'm talking about here? So I'll try this again. Here
20 well, what really happened, right? We had the videos. 20 we are. No, there? There I am, the red dot.
21 Can you show me Giron 32, please -- 3002, please? 21 If you look here along -- this is the hydro --
22 Dr. Nairn's model said that the home had 22 this is the topographic map -- thank you, you-all --
23 structural flooding at noon, August 27th. This picture 23 that shows the channels as they actually exist, and once
24 was taken on -- in the morning of August 28th. There's 24 you understand how to read it, it's not that hard, but
25 no flooding, right? And so the reality -- the facts 25 the blue and the purple show a depth of 28 -- an
3196 3198
1 defy Dr. Nairn's model. 1 elevation of 28.5 meters, and the green, which is sort
2 And, again, can you show me Micu 59, the video, 2 of the fields, and unmodified, is in the vicinity of
3 please? 3 31 1/2. So you have a roughly nine meter, ten foot or
4 Before you play it, Dr. Nairn's model says Micu 4 so channel -- did I do that -- three meter, ten foot or
5 had water in her home in the evening of the 27th, August 5 so channel, that runs past Bear Creek right here, and
6 27th. This video was taken in the morning at 9:55, 6 that's Ms. Burnham's home right there by the star.
7 August 28th. 7 THE COURT: So Bear Creek is the one on the left,
8 (Video played; no dialogue.) 8 and Langham is the one on the right? Is that correct?
9 MR. CHAREST: The Court will recall that in order 9 MR. CHAREST: So it's -- no, not exactly.
10 to prove this video up, we had to bring in Ms. Micu's 10 Langham Creek and the Horsepen is right here. This is
11 son, Christian, and he testified under oath both that 11 the Horsepen-Langham convergence, and this is all
12 the video was valid but also that there had not been any 12 channelization in here. The neighborhood of Bear Creek
13 water in his home before that time. So we know from 13 is this area here, sir (indicating).
14 someone who was in the house, who took a video the next 14 THE COURT: I put them together in the trial.
15 morning, that there was not water, so we know that 15 I'm sorry about that. Obviously, I have to
16 Dr. Nairn's model is wrong. 16 differentiate.
17 And, of course, it's allowed to be wrong, because 17 MR. CHAREST: No worries.
18 it's already three feet too high. It's plus or minus a 18 So Bear Creek is a neighborhood and Langham Creek
19 foot, has other one-foot variations, and is a predictive 19 runs past it, all right? So what Dr. Nairn did in his
20 thing that's not intended to show to that level of 20 model -- do you see where it goes abruptly from blue to
21 accuracy what really happened. 21 green right here where the red dot is (indicating)?
22 But the facts are, as proven in the Court, that 22 That -- what he did was he allowed a ten or more foot
23 Micu and Giron did not flood at the time that Dr. Nairn 23 channel, many feet wide, to come and just hit a wall,
24 said they did, and the Court should conclude that there 24 and that -- sorry?
25 was no other source of flooding at all at these two 25 (Counsel conferring.)
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1 MR. CHAREST: Yeah, and that effectively pushed 1 upstream. Well, we know you didn't report that upstream
2 the water that was coming in here through his model, it 2 because of what it shows, and what it shows is on
3 had nowhere to go, and so it flows out in his model 3 Exhibit 3005, and this is the report in the downstream
4 north and south, south being important for Ms. Burnham, 4 case when he runs the same model but with the channels
5 because it -- 5 in place as they actually are, not counterfactually,
6 THE COURT: Where is the Burnham property 6 but, in fact, as they are, and Ms. Burnham, no flooding
7 relative to -- - 7 above level one.
8 MR. CHAREST: That red dot that I'm trying to 8 What that means is, as we saw in the blue -- on
9 circle here, right here. There (indicating), the red 9 the blue line in the prior chart, that first bump in the
10 dot. 10 hydrograph, it gets close, but it does not flood her
11 THE COURT: The Court was concerned about that 11 structure, and, therefore, we're able to just
12 because Ms. Burnham testified that her house flooded to 12 eliminate -- and what we should do -- eliminate riverine
13 some extent, not nearly as much, as a result of the Tax 13 flooding as a cause. And if that's not enough to
14 Day flood that occurred about a year earlier. 14 convince the Court, we also have the LOE report, which
15 MR. CHAREST: Yes, sir. That's correct. Well, 15 is LOE 007, pages 23 and 24, which is a very detailed
16 the Tax Day -- the Court may recall the testimony, the 16 study, and the conclusions -- you have the summary of
17 rain that happened on Tax Day -- again, we learned a lot 17 results, and the conclusions were that Langham Creek did
18 about rain -- was much more intense in terms of the 18 not overtop as a result of local overflow.
19 intensity of rain, the amount per hour, but also much 19 This is an independent set of engineers doing a
20 more localized. And so our understanding is that the 20 study for LOE, but because LOE is near Langham Creek, it
21 Tax Day flood was a combination of riverine and possibly 21 evaluated both of them, and it said it was only the
22 a little -- at least being affected by the pool coming 22 Harvey flood pool held back by the dams that caused
23 back. That's what the Corps documents indicated. But 23 flooding and over -- and the eventual overtopping of
24 it was not -- it was a much more localized issue that 24 those banks, but not riverine overtopping but, rather,
25 happened in the Bear Creek area off Langham. 25 the pool coming up and getting in. So if Dr. Nairn had
3200 3202
1 But let's go to the next -- let me see where we 1 not closed the channels, his model would not have put
2 are here. Yeah, 608 at 136. Thank you. Just zoom in 2 water on Ms. Burnham.
3 to that -- perfect. 3 And Dr. Bedient confirmed, using the same
4 So the key point to take away here is the blue 4 methodology that he had from the beginning, that
5 line is Dr. Nairn's model with the regular -- with 5 Ms. Burnham's home would not flood, and the LOE report
6 Harvey as it was, channels in place, stand in place, 6 also shows that she would not flood. I think the Court
7 everything, and his own model, without affecting the 7 should conclude that, in fact, there was no other source
8 channels, shows that her home does not have structural 8 of flooding other than water held back by the
9 flooding, because the structure level is this green 9 Government's dams.
10 line, and the blue line is Harvey. So it comes close 10 That is the discussion on but for unless the
11 but does not get into their home under his own model 11 Court has any more questions on that.
12 there. 12 THE COURT: (Indicating no.)
13 Are you with me? 13 MR. CHAREST: Thank you.
14 THE COURT: Yes. 14 I'll turn then to severity, substantial invasion,
15 MR. CHAREST: The purple line is what he says 15 and that sort of thing, and, again, I'm going to try and
16 happens when you take away the dam, but not just take 16 just take a very high-level view and then pitch it over.
17 away the dam, but he also filled in those channels, and 17 I feel like I've gone a little longer than expected, but
18 the effect of that is to raise -- you see right here, 18 here we are.
19 these two first peaks? -- to raise the first peak, which 19 Under Ridge Line and also, as the Court pointed
20 should not be affected by anything, because that's 20 out, there was an aspect of intentionality under
21 before the dam water hits it, and raises it to a level 21 Arkansas Game & Fish, the next steps, I'm sorry, are
22 that imposes structural flooding on Ms. Burnham. 22 whether or not -- Ridge Line will say that if the
23 And so when we asked him during the trial, well, 23 Government appropriated a benefit from its action or
24 what if you just left the channels as they were? How 24 preempted property owners' rights, then that will get to
25 does your model work? Oh, I didn't report that 25 a taking, so I want to focus on the "appropriate a
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1 benefit" aspect of that issue. 1 It's a physical invasion. The pool -- the water was
2 Over the lifetime of these dams, the Government 2 pooled on their property for days, and it absolutely
3 has used the availability of these private properties as 3 deprived the people of their -- and the owners of their
4 a -- call it a reserve tank of storage. Until Harvey, 4 customary use of the property and destroyed property in
5 arguably, it had never used that area before, certainly 5 addition.
6 not to the extent of Harvey, but that's -- if you 6 It was a fundamental eviction, if you will, of
7 look -- if you do the math from the water impact tables, 7 their property. And I want to point out, in terms of
8 that's 78, almost 7900 acres of property in Addicks and 8 duration, our view is it's not just the time that the
9 almost 7000 -- over 7000 acres of property in Barker, 9 water was on the property, because many people, when
10 for roughly almost 15,000 acres of land that it had in 10 they -- most people, when they came back, could not move
11 its -- in between the government-owned land and the 11 back right into their property. They had to remediate.
12 spillway design flood that it had on effective reserve 12 They had to -- you know, the Court saw on her own
13 as part of the reservoir and never paid these owners a 13 property where the strips of walls were still removed.
14 penny, never compensated them for their availability. 14 That was, when I first came down -- well,
15 Now, the question, can you bring a claim for the 15 actually, when I first came down to the area, there was
16 availability? I'm not going to worry about that yet 16 still just muck everywhere and just piles of trash, and
17 because we have the actual event of Harvey, and in 17 then you would just see more and more houses and a new
18 Harvey, the Government used 7000 of those acres, private 18 pile of trash because they just took out another
19 property, 7000 acres, roughly half of what it had on 19 four-foot section of wall. House by house by house,
20 reserve, and it used those properties to store 20 people rebuilding.
21 stormwater for the benefit of avoiding damages 21 And until the house is back up into shape, we say
22 downstream. There is no clearer thing than that 22 that's the amount of the -- that's the duration of the
23 happened. 23 taking, because the person should have a reasonable
24 The Government put water on 7000 acres it did not 24 amount of time to rebuild and repair the damage that was
25 own in order to prevent damage downstream, and it 25 done before they can be seen to have reclaimed the
3204 3206
1 worked, which is the other part. That's the 1 property from the taking.
2 "appropriate a benefit" aspect of it. The Government, 2 And then, lastly, there's two more points I want
3 by its own records, saved nearly $7 billion of damages. 3 to make on severity. Number one, we had an expert on
4 That's net, okay? That's -- consider the damage 4 severity, the Court will recall, or two, I guess, Randy
5 upstream and the damage that happened in the -- along 5 Bell and Matt Deal, who talked about the -- that because
6 the surcharged corridor, still $7 billion -- 6 of the fact of flooding -- leave aside the structural
7 And, Matt, can you show me Exhibit 228, please, 7 damage and leave aside the personal property that was
8 at USAC8694, 95? 8 lost, but because of the fact of flooding, these
9 Nearly $7 billion of flood damages prevented as a 9 homeowners will suffer a depreciation in value of their
10 result in just Harvey alone, all right? 10 homes, and the teaching shows that roughly it's 30
11 And then show me also, if you would, Plaintiffs' 11 percent.
12 168. 12 It was a preliminary study. He said it was not
13 Remember the discussion about this? There's some 13 exact, but the impact of 30 percent he concluded was
14 13,000 structures downstream, all those little green 14 severe, and the reasons were -- and among those reasons
15 dots, that did not flood because of the dams. There is 15 were because most people have even less than that in
16 a very clear benefit that the Government received -- 16 terms of equity in their home, and to lose what is, in
17 appropriated -- by its use of these upstream properties. 17 effect, your biggest investment in your entire
18 Now, turning to the character of the land, we 18 portfolio, your biggest -- the biggest thing that you
19 talked a little bit about the neighborhood -- unless the 19 own, the thing you're the proudest of, your home, to
20 Court has more questions about that? I'm sorry, you're 20 lose the equity value of that cannot be anything other
21 still looking. I'm sorry. 21 than severe.
22 We talked about the neighborhood. This is, 22 And interestingly -- and that applies to every
23 again, where people build their -- you know, house their 23 single property that flooded, whether they had water in
24 families, build their lives, and you have the invasion, 24 their home or not. So like specifically Ms. Popavicio,
25 a physical invasion of detained storm runoff water. 25 I point out she's the only one of the 13 test properties
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1 that did not have structural flooding, but she 1 Mr. Bell did his analysis. So I would suspect that 30
2 absolutely will feel the effect of this flood because of 2 percent is probably a ceiling, not a floor now in terms
3 the impact on her home property -- on her home value. 3 of the type of harm they can suffer.
4 And I will point out that the Government had and 4 Unless the Court has issues or questions about
5 paid a lot of money for an expert to counter Dr. Bell 5 what I have talked about, I would like to pitch it over
6 and Mr. Diehl. He sat in the courtroom the entire 6 to Ms. Wright to talk about the individuals and their
7 trial, and then he went home. They didn't even bring 7 case-specific criteria in terms of impact.
8 him up because it was so obvious that he could not rebut 8 THE COURT: Thank you, Mr. Charest.
9 what Mr. Bell and Mr. Diehl said. 9 Ms. Wright?
10 And the last point on this notion of, like, the 10 MS. WRIGHT: Good morning, Your Honor. Lydia
11 overall impact, I don't know if the Court's aware, but 11 Wright for the Plaintiffs.
12 Texas recently passed a law, and it's effective I think 12 THE COURT: Good morning.
13 September 1, 2009, that now requires sellers to disclose 13 MS. WRIGHT: Your Honor, the Plaintiffs have
14 whether or not the property is in a pool of a Corps 14 satisfied their burden of proof under the Ridge Line
15 reservoir. 15 test, and we'll also go over the Arkansas Game & Fish
16 And I'd ask the Court to take judicial notice, 16 test.
17 but, Matt, put up the -- it's the -- the citation is SB 17 First, there's no dispute that for 10 of the 13
18 339 HB 3815, and it's the Texas Property Code, Section 18 test properties, the pool was the sole cause of
19 5.008(b), "Seller's Disclosure Notice." 19 inundation, and there's no dispute that the pool was the
20 Page 5 shows -- go back to page 5, if you would, 20 cause of maximum inundation for the Micu, Burnham, and
21 Matt. I'm sorry. 21 the Giron properties, and as Mr. Charest already
22 Page 5 shows that the disclosure -- you need to 22 discussed, for those three properties, Dr. Bedient
23 check now, are you in a reservoir -- and go down in 20 23 demonstrated at trial at that, in fact, the pool was the
24 and 21 -- are you in or partly in a flood pool or in a 24 sole cause of inundation for those three.
25 reservoir? These are required disclosures now when 25 There's also no dispute that each of the 13 test
3208 3210
1 people are trying to sell this property, lines 20 and 1 property Plaintiffs owned or, in the case of the
2 21. 2 Hollands, leased their property, and the record is also
3 And then on page 6, the law defines a flood pool 3 clear that each Plaintiff was deprived of the customary
4 as being an area adjacent to a reservoir that lies above 4 use of their property during Harvey and that that
5 the normal maximum operating level of the reservoir that 5 resulted because of the physical invasion of the
6 is subject to controlled inundation under the management 6 Government's stormwater behind the dams.
7 of the United States Army Corps of Engineers. 7 Kulwant Sidhu is a retired engineer living in San
8 And it designs a reservoir as a means of water 8 Jose, California. In 2005, he bought 29 condominiums on
9 impoundment project operated by the United States Army 9 Aspenglen Drive as a retirement investment. He and his
10 Corps of Engineers that is intended to retain water or 10 wife planned to rely on the rental income for their
11 delay the runoff of water in a designated surface area 11 retirement, and that's what they did until Harvey.
12 of land. 12 Unit 603, which is a downstairs unit, was
13 Now, this is a new law in Texas that I don't know 13 inundated by about eight inches of floodwater, and that
14 if the people that enacted it understand what it means 14 lingered for about four days. As a result, the tenant
15 to the homeowners, but now every person that tries to 15 in unit 603 terminated her lease, she said, "based on
16 sell their home has to say, yes, I'm not -- even if I 16 the uninhabitable condition of the property due to
17 didn't flood, I'm subject to flooding, and if they 17 floodwaters caused by the Addicks Reservoir." And,
18 don't, it's a failure of the disclosure that they can 18 indeed, the condo was uninhabitable.
19 get sued on later. And so imagine the effect on home 19 Mr. Sidhu had to hire contractors to remove all
20 prices that this is going to have for everyone within 20 the Sheetrock, the insulation, the cabinets, the
21 this reservoir. 21 flooring, the doors. He had to replace the appliances.
22 Now, that's the -- I know "stigma" is a dirty 22 It took him a full year to renovate unit 603 so that he
23 word, and I'm not saying it's a stigma, but this is a 23 could rent it again, and during that entire period, he
24 market -- an effect that will have market effect on the 24 was deprived of the rental income from that property.
25 property value, absolutely, and this happened after 25 Elisio Soares and his wife, Anna, bought their
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1 home on Indian Grove Lane in 2001. They chose to live 1 the kitchen appliances, the furniture, family mementoes,
2 in the Cinco Ranch neighborhood because they wanted to 2 and the same is true for all of the Winds' neighborhood.
3 send their kids to the Katy School District, to the Katy 3 This is Sunbright Court, and you can see the piles of
4 schools, which are among the best in the region. They 4 debris that folks have put out on the curb.
5 expected to pay off their home, and they wanted to 5 It took two or three days for the storm water to
6 retire there. 6 drain from inside the Winds' home, and it took 11 months
7 Mr. Soares was in New York with his family when 7 for the family to repair their home so that they could
8 Harvey hit, and they made it back to Katy on August 8 move back in. And during those 11 months, they lived in
9 31st. When they did, the storm water was still so high 9 a small garage apartment all together. At trial,
10 in their neighborhood that he had to buy a kayak to 10 Mr. Wind described the influenced and its aftermath as
11 access his property, and when he finally got there, he 11 "one of the most traumatic experiences of his life."
12 testified that everything was soaked. The furniture was 12 Scott Holland retired from the Fort Bend County
13 soaked. The water smelled like sewage. Mold was 13 Police Force in 2009 after nearly 25 years of service.
14 growing inside the Soares home because about eight 14 He was injured in the line of duty and became disabled.
15 inches of storm water had been stagnant inside for days. 15 Mr. Holland and his wife lived on Wingleaf Drive since
16 With the help of church volunteers, the Soares 16 2002. It was a rental, but the Hollands took a great
17 family gutted their home down to the studs, but 17 deal of pride in their property, and they spent a
18 everything that touched storm water had to be removed 18 significant amount of money renovating it and -- a
19 and thrown out and replaced, and everything that was 19 significant amount of time and money investing in their
20 contaminated by mold also had to be removed. That 20 property. They hoped to own it someday.
21 included furniture, appliances, family mementoes. 21 When Harvey hit, Mr. Holland was in the hospital
22 The first floor of the Soares house was 22 recovering from surgery to remove his kidney, and he was
23 completely uninhabitable for about five months, and 23 recuperating at home on August 28th when his wife took
24 during that time, the entire family, four people, lived 24 this photo from their front door.
25 upstairs, cooking on a camp stove and relying on 25 (Photo displayed.)
3212 3214
1 takeout. It took nine months for the family to return 1 MS. WRIGHT: The Hollands were evacuated by
2 their house to its preflood condition. 2 paramedics later that same day, along with their four
3 At trial, Mr. Soares said, "I fear that this can 3 dogs. Two of those dogs later died.
4 happen any time again. We can lose everything again. 4 Mr. Holland had to lay down on the bottom of the
5 We can't go through this same ordeal again." 5 flood boat, the rescue boat, so that his sutures
6 Kurt and Jean Wind have lived on Sunbright Court 6 wouldn't rupture. The family was put on a Metro bus and
7 for about 30 years. Sunbright Court is a quiet 7 shuttled to five different shelters, but each was full.
8 cul-de-sac in a deed-restricted community, and that was 8 It took them well past midnight until they could find an
9 important to the Winds because their daughter is 9 open bed.
10 visually impaired. 10 Mr. Holland returned to his home by boat a few
11 The Winds evacuated on August 28th before storm 11 days later because he wanted to secure the firearms that
12 water inundated their home, and the streets were still 12 he had left over from his police days, and this is what
13 impassable when they returned on August 30th. Mr. Wind 13 he found:
14 and his son were able to reach their home first by 14 (Video played.)
15 walking through waist-deep storm water and then 15 "This is a few days, a few days after. It's gone
16 eventually catching a ride on a rescue boat, and this is 16 down some. It's -- now we got about ten inches of
17 what they saw. 17 water, so we went from about three feet to ten -- ten
18 (Photograph displayed.) 18 inches, but we don't have much left anymore. It's nice,
19 MS. WRIGHT: When they finally entered their 19 the TV floated back on the cushion. I tried to save
20 house, the storm water was still ankle-deep, and a surge 20 some stuff, but it doesn't seem like it's going -- it
21 protector was smoldering in Mr. Wind's study. The 21 went very well. Oh, well, nothing like being old and
22 floodwater had wicked up the walls and behind the 22 starting over."
23 cabinets. The furniture and the rugs on the first floor 23 (Video concluded.)
24 were ruined, and, like everybody else, everything had to 24 MS. WRIGHT: Mr. Holland testified that the storm
25 be gutted, removed, demolished, replaced. That included 25 water inside his home was thick. It stained his hands.
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1 The stench reminded him of his experience retrieving a 1 other test properties, their house had never flooded
2 dead body from the water. Nothing on the first floor 2 before; their property had never flooded before. The
3 was salvageable. 3 storm passed on August 27th, and Ms. Popovicci thought
4 The Hollands never moved back home. They 4 that the worst was over, but she was wrong.
5 couldn't afford to rebuild and they still can't afford 5 By about noon on the 29th of August, the
6 to replace most of the personal property that was lost. 6 floodwater had risen over her curb. It had risen
7 Today they live in a 210-square-foot RV in Cleveland, 7 actually up her lawn and was about two inches up her
8 Texas. At trial, Mr. Holland said that the flood taught 8 slab. By 4:30 p.m. that same day, the storm water had
9 him what it meant to lose everything. 9 risen about 3 1/2 inches up her slab, and at this point
10 The Lakes on Eldridge Community Association is a 10 Ms. Popovicci started to worry that her home was going
11 homeowners association. It was formed to provide 11 to flood, so -- but she was confused about why the water
12 amenities to the community, like volleyball courts, 12 was rising because it wasn't raining.
13 swimming pools. It has a clubhouse with a workout room 13 So the family started rolling up their carpets
14 and a lounge that's used by members for birthday parties 14 and moving their furniture. They made a makeshift
15 and wedding receptions. 15 kitchen on the second floor and boiled water for
16 Susan Strebel is the secretary of LOE's board. 16 drinking. By 6:15, storm water was just a few inches
17 She took this photo from her kayak. During Harvey, the 17 from entering the Popovici home, and the Popovici family
18 Government stored about six inches of storm water inside 18 was lucky because this is as high as it got. The water
19 the clubhouse, and as a result, all of the clubhouse 19 never entered their home, but they were not able to
20 furniture had to be repaired or replaced. 20 leave their neighborhood, not even in their four-wheel
21 In the caterer's kitchen, the upper cabinets were 21 drive truck, until September 1st.
22 salvageable, but everything else had to be demolished, 22 The physical invasion of the Popovici property
23 removed. The fitness equipment was a total loss. The 23 lasted for five days, and even though storm water never
24 pool was totally submerged, and it took about eight 24 entered her home, as Mr. Charest said, the Popovici
25 months to reopen after Harvey. Storm water covered the 25 family, like everybody else, will have to disclose to
3216 3218
1 sand volleyball court and the tennis courts, and both 1 future buyers that their property now has a history of
2 were damaged as a result. 2 flooding, and as of September 1st, 2019, because of the
3 The 749 homes in the LOE community were unable to 3 new Texas law, they will also have to disclose that
4 use the clubhouse complex for about eight months after 4 their property's located inside a reservoir. This
5 Harvey, and LOE is still dealing with the economic 5 resulting diminution in property value is probably the
6 losses that were caused by the physical invasion of the 6 most severe impact that the Popovicis have faced.
7 Government's storm water during Harvey. 7 Ms. Micu has owned her home on Canyon Park Drive
8 Energy companies were once a reliable source of 8 since 2012. Like many of the other Plaintiffs, she
9 rental income for LOE, but after Harvey, several 9 wanted access to the Katy School District, and she
10 companies have removed LOE from their preferred renter 10 wanted to live in a deed-restricted community because it
11 list because they're concerned about the next flood. 11 was nice and safe for her to raise her kids.
12 Ms. Strebel testified that most people were 12 The Government took this photograph of Ms. Micu's
13 shocked to find out that the Government could store 13 house in 2003 or 2004 when they did a first-floor
14 floodwater on their properties, and in her words, "LOE 14 elevation survey. As a result of that survey, the
15 faces a serious problem because our property values are 15 Government knew that Ms. Micu's house was one of the
16 forever lost because we're in a floodplain. Our peace 16 thousands that they would inundate with storm water.
17 of mind is gone forever." 17 The Government never told Ms. Micu that fact.
18 Catherine Popovici has lived on Parsons Green 18 Ms. Micu and her younger children evacuated to
19 Court since 2003. The Popovicis have five children, and 19 Dallas before Harvey hit, but her oldest son, Christian,
20 they, like many of the other test property Plaintiffs, 20 stayed home, and he took this photograph on August 28th
21 wanted to send their kids to the Katy Public Schools, 21 from their front door.
22 and, in fact, their kids could walk to their elementary 22 (Photograph displayed.)
23 school from home. 23 MS. WRIGHT: He evacuated later that day by
24 The Popovicis stayed home during Harvey. They 24 walking through the streets of his neighborhood in
25 weren't worried about flooding because, like many of the 25 chest-deep water. Ms. Micu's husband, Oscar, returned
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1 to Canyon Park Drive -- returned to Canyon Park Drive on 1 water was in there for seven or eight days, and after
2 September 1st. As you can see, he couldn't -- he could 2 the floodwaters had receded, the character of that
3 only access the home by kayaking down the streets. 3 neighborhood had changed so much that she actually felt
4 Ms. Micu returned home on September 5th. She 4 like she was forced to leave. Her house got broken
5 described this photograph of her kitchen at trial. She 5 into. She described it as a "zombi apocalypse," as I
6 said: "That's the wall that we used to measure how tall 6 recall, at trial. And so she sold the house in January
7 our kids are. Those are the cabinets and the water 7 of 2018 for less than half what she paid for it three
8 line, and the floor is all covered in mud and dirt." 8 years prior.
9 Like everyone else, the Micu family had to remove 9 There's Ms. Burnham in her front yard, and it
10 everything that touched floodwater and everything that 10 kind of addresses the scope of severity to her home and
11 was contaminated by mold. They undertook extensive 11 to her personal property, and there's the interior.
12 efforts to remediate mold, including running 12 (Photograph displayed.)
13 dehumidifiers and fans for months on end. They also 13 MR. EASTERBY: Do you have any more questions on
14 pulled up all the floor tiles to clean underneath, but 14 Ms. Burnham, Your Honor?
15 Ms. Micu's home was inundated by two feet of storm water 15 THE COURT: No.
16 for about ten days, and the damage was severe. 16 MR. EASTERBY: Okay. Moving to Mr. Giron, he
17 The family was deprived of the customary use of 17 purchased this house back in 2005. He was living in
18 their home for about a year while they remediated all of 18 California. He could have chosen to live anywhere. He
19 the damage. They still own the property, but Ms. Micu 19 chose Katy specifically because the realtor told him, in
20 doesn't feel safe there anymore with young children. 20 30 years, they had had no flooding. He was concerned
21 Her son Christian lives there now. He keeps a kayak in 21 about Houston a bit because he thought it was a place
22 the house in anticipation of the next time the 22 that had hurricane bombs, so he wanted to be further
23 Government stores stormwater there. 23 west and a little bit further away from the threat of
24 Mr. Easterby will now discuss the next group of 24 those kinds of storms. So to that character issue,
25 Plaintiffs. 25 there had never been any flooding in the Cinco Ranch
3220 3222
1 MR. EASTERBY: Good morning, Your Honor. 1 area prior to Harvey. I think that was undisputed
2 THE COURT: Good morning. 2 testimony at trial.
3 MR. EASTERBY: Turning to Ms. Burnham, she 3 Again, he was one of the properties that the
4 purchased the house on Four Season Drive on December 4 Corps of Engineers had gone out in 2003 or 2004 and
5 31st, 2014, intending that it be her forever home. She 5 taken a first-floor elevation so they would know exactly
6 actually borrowed the money for the purchase from her 6 who would be flooded by their reservoir pools, and those
7 mother, and she specifically chose that location because 7 were put into evidence for Addicks and Barker and for
8 it was on a cul-de-sac. 8 Barker, Harris, and Fort Bend County.
9 She got about five feet of water during Harvey. 9 As Mr. Charest already addressed, the record
10 I know the Court had some questions about Tax Day 10 evidence reflects that there was no flooding in the
11 flooding. Her testimony was on that event she had about 11 Giron house on August 28th, 2017, and that, in fact, the
12 three feet of water that came in very rapidly and left 12 water did not even get to the threshold of his music
13 very rapidly. To that point, I think it is significant 13 room. That's that white door you see on the left there,
14 that the flows on Langham Creek during Tax Day were 14 that picture that's Giron 19, on the next day, August
15 substantially higher than they were during Harvey. 15 29th, 2017.
16 And I would direct the Court to Plaintiffs' 16 (Photograph displayed.)
17 Exhibit 138, which was the USGS characterization of 17 MR. EASTERBY: Again, he had catastrophic damage
18 stream flows during Harvey, which indicated that Langham 18 to the house, outside and in. All the hardwoods had to
19 Creek during Harvey was only 9000 cubic feet per second, 19 be ripped up. And most significantly, he was living in
20 which was equivalent to about a 20-year storm, and 20 a FEMA trailer from January of 2018 until shortly after
21 that's what Mr. East testified to. So for that reason, 21 trial, about June of 2019. As far as I know, that house
22 we believe Harvey was a much different storm than Tax 22 today still remains in that mucked-out condition that
23 Day with respect to the flooding of Ms. Burnham's 23 Your Honor saw during the site inspection. So for the
24 property. 24 Giron family, this continues.
25 The damage to her house was catastrophic. The 25 Moving ahead to the Stewart family, the Stewart
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1 family bought that property, oh, 34 years ago. The 1 discussions with the Corps about extending the runway
2 purpose was the good schools, a good place to raise a 2 into government-owned land. In those interactions,
3 family. They're in the Bear Creek Village area behind 3 there was never any discussion or disclosure about
4 Barker. 4 project-induced flooding.
5 And can you turn the sound up on this one, Matt? 5 We, I think, proved at trial that the source of
6 This one I think is really significant, just 6 the floodwaters was exclusively from the Addicks
7 speaking to the notion that people had any knowledge or 7 Reservoir pool. We excluded Bear Creek because of Stacy
8 awareness that they were in an area that was at risk to 8 Lesikar's video she took on the banks of Bear Creek that
9 project-induced flooding. 9 Your Honor may recall and Mr. Charest addressed. And as
10 (Video played.) 10 you can see here, on August 30th, which was the max
11 "I never thought I'd be riding in the street on a 11 depth of the pool, they had about eight inches of water
12 boat. This is just unbelievable." 12 within the terminal building, and the entire airport
13 (Video concluded.) 13 property was completely inundated, with the exception of
14 MR. EASTERBY: That was their evacuation on 14 a little bit of the runway, in connection with the
15 August 29th. 15 project-induced flooding. So they were down for about
16 We presented evidence at trial that there was no 16 five days, although it took them over a year to get
17 water in the house prior to the evacuation. Thereafter, 17 their property fully restored.
18 they had to muck out to four feet and then do 18 If Your Honor has no questions, I will turn it
19 substantial renovations, which exhausted their life 19 over to Mr. Vujasinovic for the Banker property.
20 savings. In fact, they had to sell their lake house to 20 THE COURT: Thank you. Thank you, Mr. Easterby.
21 pay for the renovations that were completed about March 21 MR. VUJASINOVIC: Good morning, Your Honor.
22 of 2018. So as most of the folks in this trial, the 22 THE COURT: Good morning.
23 period of displacement was about six months. 23 MR. VUJASINOVIC: Thank you.
24 Let's see. And one of the things I thought was 24 I'll address Todd and Christina Banker. They
25 significant at trial was when I asked Mr. Stewart what 25 bought their home about ten years before Harvey. They
3224 3226
1 was taken from you and asked him if the damage was 1 lived in it as their primary residence for that entire
2 permanent, he really reflected and addressed it to this 2 time with their daughter, who was eight years old at the
3 picture, where you see the house, the drywall, all the 3 time of Harvey. It was a 3700-square-foot home in a
4 personal property out on the front yard, because now 4 subdivision called Kelliwood. It's on the -- kind of
5 it's garbage. It's permanently destroyed. 5 the southern part of Barker. It's a deed-restricted
6 Moving to the Turney family, that green house you 6 community. They paid about $440,000 for it.
7 see in the background is the Turney house on Red Willow. 7 Although the Bankers were fairly young, their
8 It is very close to government-owned land in the Addicks 8 intent was for this to be their retirement home. Katy,
9 Reservoir area. Interestingly, it's one of the houses 9 the area where it's located, was growing, and they
10 that's not on any FEMA flood insurance rate map flood 10 expected some real appreciation with the property at the
11 zone. It's not depicted in any flood zone at all. 11 time that they purchased it.
12 But notwithstanding that, you see it got about 12 They did not have flood insurance. They had no
13 six feet of water during Harvey, and Turney had lived 13 idea the home was subject to any kind of an inundation
14 there for many years prior to Harvey. His daughter-in- 14 or that it was located in an area of a government
15 law, Margie, had taken possession of the house in 2010. 15 reservoir. Mr. Banker testified they wouldn't have
16 You can see the high water mark, the mold. It was 16 purchased the home if they had known that.
17 totally destroyed inside and mucked out to eight feet. 17 Mr. Banker testified that on Monday, the 28th of
18 And then we see his grandson, Jaden, assisting in 18 August, early in the morning, they evacuated their home
19 the work of repairing the damage from the project- 19 in a kayak. His wife had been watching Jeff Lindner,
20 induced flooding. 20 the Harris County meteorologist on TV, talking about
21 And, lastly, speaking to the West Houston Airport 21 what was going to happen. And so they got in a kayak
22 Corporation's terminal property, Woody Lesikar probably 22 with their eight-year-old daughter at the time and their
23 has the most history in the Addicks Reservoir of any 23 dog, and they got out of the neighborhood.
24 witness at trial. He had been out there since the 24 They were allowed to go back into their
25 sixties, and you might recall he had had some 25 neighborhood about a week later, and Mr. Banker
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1 testified to Your Honor at trial that his entire home, 1 Mr. Charest?
2 the first floor was covered in what he called a muddy 2 MR. CHAREST: That's fine for the Plaintiffs,
3 sludge, it was filthy, and it smelled poorly. 3 sir. Thank you.
4 The water got up to a little over one foot in 4 THE COURT: Is that fine with you, Mr. Shapiro?
5 their home, which is undisputed, that all of that water 5 MR. SHAPIRO: Yes, Your Honor.
6 in this case at the Bankers' home was solely caused by 6 THE COURT: All right, thank you. We are in
7 the rising pool. They were out of their home, and 7 recess for, let's say, eight minutes.
8 initially they lived in a hotel for about a week, and 8 (Court in recess.)
9 then they had to move in with Mr. Banker's parents. 9 THE COURT: Please be seated. Welcome back.
10 They had to remove four-foot of drywall 10 Mr. Shapiro, you may proceed. Sorry for the
11 throughout their -- the first floor of their home, as 11 delay, but it seemed prudent to take a break.
12 you can see on Banker 24-C. Like so many flood victims, 12 MR. SHAPIRO: Thank you, Your Honor. May it
13 the bankers ended up with a huge pile of what used to be 13 please the Court.
14 their family belongings sitting out in their front yard, 14 The Court should reject Plaintiffs' claims for
15 waiting to be picked up by the trash trucks. 15 the reasons that we set forth in our post-trial brief,
16 They spent a lot of money and had extensive work 16 and given the length of the post-trial briefing, I want
17 done to be able to get their home to where it was 17 to focus my attention today on approximately four points
18 livable again, and so about seven months after Harvey is 18 which I think will respond to most, if not all, of the
19 when they were able to move back in and live in their 19 arguments that Mr. Charest made this morning.
20 home. 20 First of all, this was a one-time flood that
21 Finally, Mr. Banker was asked at trial, Your 21 occurred during a historically large storm and, as such,
22 Honor, about -- you know, as he sees it, what was taken 22 Plaintiffs' claims are properly characterized as tort
23 from him, and he said peace of mind, number one. Number 23 claims and should be rejected for a lack of
24 two, he said uncertainty of the future. And third is 24 jurisdiction.
25 this family was hardest hit because their daughter has 25 Second, I want to discuss why the trial evidence
3228 3230
1 special needs. She will never be able to care for 1 shows that the Police Power Doctrine applies here.
2 herself in her life. 2 Third, I want to spend a few minutes talking
3 And so Todd and Christina Banker had been saving 3 about the causation argument, that was an issue that
4 money to care for their daughter. They had saved up 4 came up with Mr. Charest, and particularly the issue of
5 enough for, like, 10 or 11 years of care for their 5 the upstream outgrants including the channels upstream.
6 daughter once they were gone, and that took them about 6 And then, finally, I want to emphasize a few
7 18 or 19 years to accumulate, and so that's a huge hit 7 points relevant to the multifactor test set forth in the
8 to their family, that they're not going to be able to 8 Arkansas Game & Fish Commission test.
9 take care of their daughter as they had planned to do. 9 First, the parties appear to agree that the
10 That's all I had on behalf of the Bankers, Your 10 distinction between a tort and a taking is the test set
11 Honor. If you have any questions, I'm happy to answer 11 forth in the Ridge Line case, and that requires
12 them. 12 Plaintiff to show, first, that the Government either
13 THE COURT: Thank you. No, that's fine. Thank 13 intended to invade a protected property interest or that
14 you, Mr. Vujasinovic. 14 the invasion was the direct, natural, or probable result
15 MR. VUJASINOVIC: Thank you. 15 of an authorized activity; and that, second, the
16 MR. CHAREST: With that, Your Honor, the 16 Government's activity was sufficiently substantial to
17 Plaintiffs are done with our closing argument unless the 17 justify a takings remedy.
18 Court has any questions. We rely on the briefing for 18 There was some discussion with Mr. Charest, based
19 the remainder of the points. 19 on the Court's question, as to whether Arkansas Game &
20 THE COURT: Thank you. 20 Fish posed an identical test. It's our view it is not
21 Mr. Shapiro, what the Court would suggest is we 21 identical. There may be some overlap. The same facts
22 take a seven- or eight-minute break, and then we 22 may influence both of the tests, but I'll try to point
23 reconvene for about an hour, and then we might have to 23 that out when I get to the Arkansas Game & Fish merits
24 take a break for a delayed luncheon before we begin 24 test, that we think it's a different analysis.
25 again. 25 But in regard to the Ridge Line test, first,
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1 throughout their reply and then again this morning with 1 dealing with a merits situation as well as jurisdiction.
2 Mr. Charest -- 2 MR. SHAPIRO: Yes, Your Honor.
3 THE COURT: Let's talk about that for just a 3 THE COURT: Okay.
4 minute, because the Court really doesn't see any 4 MR. SHAPIRO: Our point, though, is that the
5 difference. 5 Plaintiffs' claim fails under both of those tests. So
6 MR. SHAPIRO: Yes, Your Honor. 6 because Plaintiffs' claims fail under Ridge Line, the
7 THE COURT: Do you see a difference? 7 Court need not go any farther. The Court should reject
8 MR. SHAPIRO: Yes, Your Honor. So the Ridge Line 8 Plaintiffs' claims because they failed to meet the
9 test, according to the Federal Circuit, set forth a 9 standard set forth in Ridge Line. Only if the Court
10 two-part test, the foreseeability and the substantiality, 10 were to conclude differently, that they have satisfied
11 and as we read that case, it is designed to distinguish 11 the elements in Ridge Line, need it analyze the
12 between what could be characterized as a Fifth Amendment 12 merits-based analysis under Arkansas Game & Fish.
13 taking versus what should be brought as a tort under the 13 THE COURT: Well, the Court modestly disagrees
14 Federal Tort Claim Act. 14 with you, because the Supreme Court had the torts/
15 The Arkansas Game & Fish Commission test sets 15 takings distinction, which is jurisdictional, before it
16 forth a merits-based, multifactor test, which set forth 16 as well as the merits in Arkansas Game & Fish, but I
17 a variety of other factors, including reasonable 17 think it's immaterial insofar as the tests, as you point
18 investment-backed expectations, that should be assessed 18 out, overlap, if not -- if are not completely congruent.
19 in a temporary flooding situation like existed in 19 MR. SHAPIRO: Well, we certainly do agree -- we
20 Arkansas Game & Fish and that Plaintiffs argue exists 20 don't agree that they are congruent. We do agree
21 here. 21 that --
22 So it -- one is a -- the Ridge Line test is 22 THE COURT: Well, they aren't congruent, but --
23 distinguishing between torts and takings, and Arkansas 23 MR. SHAPIRO: -- some of the facts could
24 Game & Fish, if you get past the Ridge Line test and the 24 certainly inform both of the analyses.
25 Court characterizes this claim as a taking, it could be 25 THE COURT: Yes.
3232 3234
1 viewed as and analyzed as a taking rather than a tort, 1 MR. SHAPIRO: But stepping back to the Ridge
2 and then we believe that the Court would need to assess 2 Line, which we see as a preliminary analysis,
3 the merits of that claim under Arkansas Game & Fish. 3 Plaintiffs, as they did this morning and in their reply
4 THE COURT: Well, the Court views Arkansas Game & 4 brief, make a pitch that the Corps intended to place
5 Fish as essentially an elaboration of Ridge Line, 5 floodwater on the upstream properties, but that is
6 because the tort/taking distinction was at issue in 6 incorrect and not supported by the trial evidence.
7 Arkansas Game & Fish as well, just as in Ridge Line. 7 We certainly agree that the documents -- and
8 MR. SHAPIRO: We see it as a different analysis 8 Mr. Thomas at trial testified -- that the project exists
9 entirely, Your Honor. What Arkansas Game & Fish is 9 to provide some flood protection to the downstream
10 talking about is a merits-based analysis based on the 10 areas, and the Corps operates the project with the
11 character of Plaintiffs' property, the reasonable 11 intent of protecting those downstream properties, but
12 investment-backed expectations at the time of 12 that does not mean that the Corps intends to flood
13 Plaintiffs' purchase, a variety of different factors 13 upstream properties, and despite Mr. Charest's attempts
14 that are outlined in that case. That need only be 14 at trial to get Mr. Thomas to say that, Mr. Thomas I
15 analyzed if the Court concludes that, under Ridge Line, 15 think did his best to answer honestly that the Corps
16 this case could be brought as a Fifth Amendment taking. 16 does not have that intent. There's no intent there, and
17 So I certainly agree with the Court that some of 17 Plaintiffs' arguments to the contrary are not evidence.
18 the same facts would inform the two tests, but in our 18 These reservoirs, as the Court is aware, are
19 view, they are separate. And if -- again, if the Court 19 normally dry, but when they are in operation, the flood
20 concludes this could be analyzed as a Fifth Amendment 20 pools stay below the government-owned land during normal
21 taking, it would still need to go through the Arkansas 21 operations, and for more than 70 years after construction,
22 Game & Fish test. 22 the flood pools never impacted the upstream properties.
23 THE COURT: Well, that's true, but we're dealing 23 So I think despite using the word repeatedly -- the word
24 with a liability set of contentions respecting 13 test 24 "intent" repeatedly in their briefing, what Plaintiffs
25 properties, bellwethers, if you will, and so we're 25 appear to really be saying is that the Corps knew that
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1 upstream property was a remote possibility and that, in 1 characteristic of the basin. That is JX 16, where it
2 their view, that is sufficient to show actual intent. 2 shows that the government-owned land exceeded the size
3 That is incorrect. 3 of the standard project flood.
4 Knowing something might physically occur during a 4 So, yes, the Corps knew that the 1899 Hearne
5 massive storm does not show that that result is 5 Storm had occurred in a different watershed, set 90
6 intended, and I think that's consistent with the 6 miles away as the Court noted, and it believed that was
7 discussion that Mr. Thomas gave when he was pressed on 7 the worst storm that could physically occur. It made
8 this question by Plaintiffs' counsel on cross. 8 the prudent decision back in the 1940s to build the dam
9 Plaintiffs also fail to prove foreseeability. 9 large enough so that it would not fail during that
10 When the Corps planned and built the reservoirs in the 10 storm; that is, it treated that 1899 Hearne Storm as the
11 1940s, at that time, the 1935 storm was the largest 11 design storm, which later the terminology became the
12 storm to hit these watersheds during the period of 12 spillway design storm.
13 record, and that's set forth in Joint Exhibit 5, the 13 But the Corps understood that to be a rare event
14 1940 Definite Report. 14 in these watersheds, and so in an 18 -- excuse me, a
15 The Court understood and believed that the 1935 15 1989 memorandum, which was admitted into evidence as
16 storm was the worst storm that was reasonably 16 PX 2284, just as an example, the Corps estimated the
17 characteristic of these basins. That is transcript at 17 return frequency of the spillway design flood to be a
18 page 97, the testimony of Mr. Thomas. So given that 18 1000 to a 1500-year flood event. And, of course,
19 understanding, the Corps bought more than enough land 19 Hurricane Harvey also was a historically large storm for
20 upstream of the reservoirs to accommodate the flood pool 20 this region and for the United States as a whole.
21 that would be created by that 1935 storm, and that made 21 We presented at trial the only trial evidence
22 good sense, because at that time the upstream properties 22 about the size and the rarity of Hurricane Harvey. So
23 were undeveloped and the Corps anticipated that a storm 23 Mr. Kappel testified that Hurricane Harvey, when it
24 of the size of the 1935 storm was likely to occur 24 struck the area in 2017, had an average annual
25 several times during the life of the project. 25 exceedance probability of a 775-year storm and an
3236 3238
1 The Corps foresaw at that time that it owned 1 850-year storm in the two watersheds.
2 enough property upstream to accommodate the flood pool 2 And then Mr. Lindner with Harris County Flood
3 expected during the worst storm it believed was 3 Control District testified that Harris County was a
4 reasonably characteristic of the basin, plus an 4 record-setting rainfall event and that the evidence was
5 additional three feet as a buffer, and the Court will 5 that Harris County had estimated Hurricane Harvey to be
6 recall that that was the testimony that the Corps, at 6 a 5000-year event in Harris County. That's Defendant's
7 that -- in the 1940s, bought more than enough land to 7 Exhibit 737.
8 accommodate that 1935 storm, then considered the worst 8 Plaintiffs did not offer any contrary evidence at
9 storm reasonably characteristic of the basin. 9 trial, and, in fact, Dr. Bedient, who was Plaintiffs'
10 And that situation did not change for decades, so 10 expert witness on this issue, testified that the Corps
11 in the 1955 Reservoir Regulation Manual, for example -- 11 "would be hard-pressed to have foreseen a storm like
12 that's DX 25 -- that document shows that the 12 Hurricane Harvey would hit the Addicks and Barker
13 government-owned land boundary was bigger than the 13 watersheds back in the 1940s." That's page 2029 of the
14 standard project flood boundary. What that means is the 14 transcript.
15 Government owned more land than the flood pool expected 15 And if we look back at his expert report -- and
16 during the worst storm believed reasonably 16 if we can maybe pull that up, that's PX 526. And this
17 characteristic of the basin. 17 is, I think, PDF page 40, Figure 9.
18 Mr. Charest, during his comments this morning, 18 Plaintiffs' own expert report includes a graphic
19 tried to focus on the addition of the gates at the 19 showing that Hurricane Harvey was a greater than
20 conduits in the 1960s, and that certainly happened, but 20 1000-year storm in the region. Dr. Bedient testified at
21 even after those gates were added, it remained the case 21 trial that back in the 1940s -- and I think the Court
22 that the Corps still owned more land upstream of the 22 alluded to this with some questioning with Mr. Charest
23 reservoirs, enough -- more than enough land upstream of 23 this morning -- back in the 1940s, storms in the upper
24 the reservoirs to accommodate the flood pool expected 24 watersheds were smaller as compared to the storms that
25 during the worst storm considered reasonably 25 have impacted the area in more recent years, and he
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1 testified that the Corps did not expect the weather to 1 likely relates to the planning horizon for the proposed
2 change. That's the trial evidence, and the parties 2 project, the Triple Corridor Plan, not an effort to
3 agreed with that trial evidence. So a storm like 3 actually estimate an annual exceedance probability for
4 Hurricane Harvey was physically possible but incredibly 4 the 1899 Hearne Storm, and we discussed this in our
5 remote. 5 opposition, including Mr. Thomas' declaration, which
6 Despite this, in Plaintiffs' reply brief and in 6 we've submitted in the -- in case the Corps admits --
7 Mr. Charest's closing this morning Plaintiffs now appear 7 the Court admits those documents.
8 to be taking the position that, well, maybe Hurricane 8 As Mr. Thomas explains, the industry standard at
9 Harvey was neither rare nor unexpected, but the trial 9 the time these documents were written was to design
10 record does not support that assertion. We saw this 10 projects with a 50-year planning horizon. So that
11 morning and we saw in Plaintiffs' most recent filing 11 50-year reference in the historic documents likely
12 that they spend a fair amount of time talking about 12 refers to the 50-year planning horizon, not an attempt
13 these two new documents that they've included in their 13 to actually calculate a recurrence interval.
14 motion to re-open the record, and they -- they treat 14 And as we show in the 18 -- excuse me, the 1989
15 those documents as sort of a smoking gun, that, oh, 15 memorandum, PX 2284, that was actually admitted at
16 well, the Corps thought that the 1899 storm -- Hearne 16 trial, the Corps in 1989 stated that the spillway design
17 Storm was a 50-year storm. 17 flood was a 1000- to a 1500-year event.
18 We filed an opposition to Plaintiffs' motion, and 18 The idea that the Corps thought back in the 1940s
19 I want to just briefly address the substance of that, if 19 that the 1899 Hearne Storm was a one-in-50-year storm
20 I could, Your Honor. Plaintiffs -- those two documents 20 just doesn't make any sense and conflicts with the trial
21 do not address the Addicks and Barker Dams and 21 evidence from Dr. Bedient that the Hurricane Harvey,
22 reservoirs. They instead address a different flood 22 which Plaintiffs say is equivalent to the 1899 Hearne
23 control proposal called the Triple Corridor Plan. That 23 Storm, Dr. Bedient testified that the Corps would have
24 plan -- it's not an early name for the Buffalo Bayou 24 been hard-pressed to predict Hurricane Harvey. And as
25 Tributaries Project or the Addicks and Barker 25 we showed a minute ago, his expert -- own expert report
3240 3242
1 Reservoirs. It was a different plan that Congress did 1 shows that Hurricane Harvey was over a 1000-year event
2 not authorize and the Corps did not construct. 2 in areas near the water -- areas near the reservoirs.
3 It involved a different proposed method for 3 Harris County thought this was a 5000-year storm.
4 draining the floodwaters compared to the project that 4 Mr. Kappel thought this was an 850-year storm.
5 was actually designed and constructed, and it appeared 5 Mr. Thomas testifies in his declaration that the Hearne
6 to be made up of ten different storage areas and then 6 Storm was between a one-in-500 to a one in-a-thousand-
7 some cross-country drainage channels rather than the two 7 year storm back in the 1940s. The idea that this
8 reservoirs that were actually built. The documents that 8 somehow is a smoking gun and shows that Hurricane Harvey
9 Plaintiffs are seeking to re-open the record to admit 9 was a one-in-50-year storm just doesn't make sense and
10 are preliminary in nature, and they appear to be part of 10 conflicts with all of the trial data on this point.
11 an iterative review and analysis process. Both of the 11 To return back to the foreseeability question,
12 documents involve some analyses were generated at the 12 foreseeability has to have some meaning. Simply knowing
13 district level for submission for higher level reviewers 13 that a particular result is a remote, possible result
14 and decision-makers. 14 does not necessarily mean it was the direct, natural, or
15 Plaintiffs submit, though, that the documents 15 probable result, and I think the Moden case from the
16 show definitively that these -- that the Corps thought 16 Federal Circuit makes that point. There's a difference
17 that the Hearne Storm was a one-in-50-year storm back in 17 between causation and foreseeability, and as the Court
18 the forties, but that's incorrect. The actual planning 18 noted, an idea that something is conceptually possible
19 documents for the project, JX 7, show that the Corps 19 doesn't necessarily mean that it is foreseeable. The
20 thought the 1899 Hearne Storm, they treated it as the 20 relevant probabilities associated with Hurricane Harvey
21 design storm and said that it produced "the greatest 21 are so incredibly remote that foreseeability has not
22 depth of rainfall over a large area of record in the 22 been shown.
23 United States," and that it could happen in these 23 In response to the arguments that I've just made
24 watersheds but was not likely to happen. 24 and the arguments that are set forth in our post-trial
25 The reference to 50 years in the new documents 25 brief, Plaintiffs make a couple of points. One is they
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1 make an argument that, well, maybe foreseeability should 1 government action for purposes of this case. That's
2 not be tied to the 1940s, that maybe it should be 2 when foreseeability should be analyzed in our view.
3 measured at various times. A couple of responses to 3 So what changed? Why -- why -- when did this
4 that. 4 change? And this came up I think in a roundabout way
5 First, that position is really inconsistent with 5 with some questioning -- some answers from Mr. Charest.
6 the complaint that the Plaintiffs have filed here. If 6 Until 1977 or so, the Corps thought that it owned enough
7 you look back at the complaint, what Plaintiffs are 7 property upstream of the reservoirs to accommodate the
8 really complaining about here includes the construction 8 pool that would be created by the worst storm reasonably
9 of the project, obviously the major federal action that 9 characteristic of the basin. So what changed in the
10 brings us here today. So Plaintiffs have pled their 10 seventies?
11 claim based in part on the construction and the 11 It was not some new construction effort. It was
12 operation of the project. 12 not some physical addition to the project. Mr. Charest,
13 THE COURT: Let's address the fact that the 13 sort of in a few of his closing remarks, tried to throw
14 project, as designed in the final design, was not 14 in the gates being added and maybe the main embankments
15 actually built. There are a couple of elements that 15 being added. That's a red herring. That had nothing to
16 were deleted or elided. 16 do with what changed in the 1970s.
17 MR. SHAPIRO: Yes, that is correct. That, in our 17 What changed in the 1970s was instead a better
18 view, does not change the foreseeability question, Your 18 understanding of engineering principles and
19 Honor. There were certain elements as the Court noted, 19 meteorological science. That's in the 1977 hydrology
20 for example, the upstream levee that was not 20 report, and it's after the publication of the 1977
21 constructed. The Corps -- as the Corps -- as the Court 21 hydrology report that for the first time the Corps
22 understands, the Corps bought additional land to try to 22 understands that the government-owned land is -- will no
23 accommodate that, and after they completed the 23 longer accommodate the standard project flood, the flood
24 construction that was limited, after they completed that 24 that's expected during the worst storm reasonably
25 construction, the Corps still thought that they owned 25 characteristic of the basin. It's after the improved
3244 3246
1 enough land upstream of the reservoirs to accommodate 1 science. It's after the improved understanding of
2 the worst storm considered reasonably characteristic of 2 meteorological principles. It's not after some physical
3 the basin. 3 change to the project like the raising of the
4 That was true in the 1940 Definite Report. That 4 embankments, which came in the 1980s.
5 was true in 1955 in the Reservoir Regulation Manual. 5 Another point about the timing of when
6 And, critically, it was also true in the 1962 Reservoir 6 foreseeability should be measured. You know, adoption
7 Regulation Manual, after the Corps had already 7 of Plaintiffs' position -- I think this became clear
8 constructed gates on all of the conduits. Still, even 8 from Mr. Charest's comments today -- but adoption of
9 after that, the Corps understood, it foresaw that it 9 Plaintiffs' position that, well, maybe foreseeability
10 owned enough land upstream of the reservoirs to 10 should be measured at sort of a -- I don't know, a
11 accommodate the largest pool that was reasonably 11 decades-long period rather than when the primary
12 expected -- reasonably characteristic of the basin. 12 government action took place would really turn the
13 That's what the standard project flood is, and if you 13 relevant government action into an inaction.
14 look back at those, we include those graphics in our 14 So throughout their reply and in Mr. Charest's
15 post-trial brief. The Corps understood that its 15 comments this morning, Plaintiffs complain that the
16 government-owned land exceeded the standard project 16 Corps knew that upstream flooding was physically
17 flood at each of those instances. 17 possible, it considered purchasing additional land
18 One other point and then I'll move on. 18 upstream, and the survey came up this morning, it
19 Mr. Charest here this morning kept talking about, in his 19 surveyed the upstream properties in the 2000s, and it
20 closing, focusing on the design of the project and the 20 decided not to act. But the Federal Circuit's decision
21 construction of the project. He used the phrase "from 21 in St. Bernard Parish and other cases make clear that
22 the day-one inception, the Corps should have foreseen 22 inaction cannot support a takings claim.
23 this." We disagree with that, but I think what that 23 So one result of Plaintiffs' argument about
24 sort of underscores is that Plaintiffs remain focused on 24 foreseeability is that the Court is all of a sudden
25 the construction of the project, the important 25 being asked to focus on inaction rather than action, and
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1 here the relevant action dates back to the 1940s. 1 THE COURT: -- considerations.
2 THE COURT: St. Bernard Parish, though, actually 2 MR. SHAPIRO: That's what happened in 1977, that
3 talks about government actions having pluses and 3 the Corps publishes the 1977 hydrology report, which
4 minuses, doesn't it? 4 demonstrates now the government-owned land is not
5 MR. SHAPIRO: It does. It does talk about that. 5 capable of holding the entire standard project flood,
6 I think that issue has come up in the trial court's 6 not because the Corps didn't build the entire project,
7 decision of -- in Ideker as well. 7 not because the Corps added gates to the conduits, but
8 THE COURT: Yes, exactly. 8 because there was a better understanding of meteorology,
9 MR. SHAPIRO: But that's not -- 9 there was a better understanding of engineering, and
10 THE COURT: In this particular case, things were 10 that testimony is clear from Mr. Thomas at trial.
11 not static with the final design in 1940. Things 11 The next argument that is made in Plaintiffs'
12 happened. Parts were not built. Certainly the United 12 reply brief and came up with Mr. Charest in response to
13 States was at war in World War II, and there undoubtedly 13 a couple of questions is their argument that what we're
14 were good reasons for it. Nobody questions that, but 14 arguing here is somehow contradictory, that on the one
15 there were a set of changes that occurred since then. 15 hand we're arguing, well, the Hurricane Harvey was not
16 MR. SHAPIRO: Right. So at what point, then -- 16 foreseeable, yet we are also arguing in a different
17 so I understand the Court's question, and I -- but at 17 context that Plaintiffs knew or should have known of the
18 what point, then, and why does it become apparent to the 18 possibility of flooding on their property. And
19 Court -- to the Corps, the Army Corps of Engineers, that 19 Plaintiffs -- I think Mr. Charest said this today or at
20 it does not own enough land to accommodate the most -- 20 least suggested it, that those both can't be right, that
21 the worst storm considered reasonably characteristic in 21 that must be contradictory, but there is no
22 the basin? It's not -- it's not because the Corps 22 contradiction, because Hurricane Harvey truly was
23 didn't build the entire thing. 23 unprecedented, the trial is evidence is clear --
24 THE COURT: "Reasonably characteristic" is, in 24 THE COURT: Well, it wasn't a sense of the Hearne
25 your argument, a term of art. 25 Storm. It was about the same, as a matter of fact, just
3248 3250
1 MR. SHAPIRO: It is, Your Honor, and it's 1 in a different location.
2 discussed by several of the witnesses at trial and some 2 MR. SHAPIRO: In a different location. It --
3 of the documents as well, about what a standard project 3 that's certainly correct, Your Honor. It certainly was
4 flood is. 4 in a different location. The Hearne Storm had occurred
5 THE COURT: Right. 5 90 miles away in a different -- a different watershed.
6 MR. SHAPIRO: So it's not -- it doesn't -- that 6 THE COURT: Right.
7 change does not occur because the Corps only had funding 7 MR. SHAPIRO: Yes. But it was unprecedented in
8 due to the war to build part of the project. And how do 8 the sense that a storm of that magnitude had never hit
9 I know that? Because you look at the 1955 Reservoir 9 the United States before. That was the largest storm to
10 Regulation Manual where it actually considers this 10 hit the United States. That's the trial evidence. It
11 question. What is the government-owned land boundary 11 was, according to Harris County, a 5000-year storm.
12 and what is the standard project flood? And the 12 THE COURT: Well, whether it's 885 years or 775
13 government-owned land boundary is big enough to 13 years or 8000, it still had occurred in the Gulf. Well,
14 accommodate the standard project flood. 14 anyway, we'll pass over that.
15 THE COURT: We can talk about the standard 15 MR. SHAPIRO: Yes, and the -- you know, I see the
16 project flood, but we also have talked about the 16 Court's point, and that's why the Corps built the two
17 spillway design storm, right? 17 dams not to fail during a storm of that size. That
18 MR. SHAPIRO: Yes, sir. Yes, and as we discuss 18 doesn't change the fact, though, that Hurricane Harvey
19 in our post-trial brief and what became clear at trial, 19 was still a unprecedented storm and not foreseeable --
20 the Corps made the reasonable decision to build the dams 20 THE COURT: Well, it was for the location, not
21 not to fail during a larger storm. That's what the 21 necessarily for the Gulf region of Texas.
22 spillway design flood is. 22 MR. SHAPIRO: Well, it -- I appreciate what the
23 THE COURT: Right. As you say, it's a 23 Court is saying. I think the trial evidence is that
24 combination of engineering and meteorologic -- 24 over the five-year -- the five-year window of -- that
25 MR. SHAPIRO: In 1977, that's right. 25 Hurricane Harvey impacted these areas, it was an
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1 unprecedented storm. 1 certainly a very important aspect, and, in our view,
2 THE COURT: Well, we can talk about Claudette, 2 Plaintiffs have not shown that they had any reasonable
3 Allison, and the Tax Day storm, and we almost have a 3 expectation that their properties would not -- would
4 buildup of storms, so the climatic conditions appear to 4 never flood.
5 have changed as well, or maybe it's just better 5 THE COURT: Well, they had expectations. You're
6 measurement. Who knows? 6 questioning whether or not those expectations were
7 MR. SHAPIRO: Yes. And I think that is 7 reasonable.
8 consistent with Dr. Bedient's testimony, that the 8 MR. SHAPIRO: Yes, Your Honor.
9 weather has changed, maybe the measuring of weather -- 9 THE COURT: Thank you.
10 it's certainly true that the measuring of weather has 10 MR. SHAPIRO: So just to finish up this
11 changed, and that change in weather, according to 11 discussion, I want to try to tackle one more issue that
12 Dr. Bedient, Plaintiffs' own expert, was not foreseen by 12 we talked about a little bit and that Mr. Charest
13 the Corps when these projects were built in the 1940s. 13 brought up, is the modifications that -- to the project
14 But back to the contradiction to Plaintiffs' 14 that occurred in the 1980s, and they make this point in
15 claim we're making, in our view, Hurricane Harvey was 15 their reply brief, and I think it's at page 15, that,
16 unprecedented, it was not foreseen, but it is also true 16 well, maybe the Court should be looking at
17 that Plaintiffs knew or should have known of the 17 foreseeability at a different time because the Corps
18 possibility that their properties might flood in a large 18 modified the reservoirs.
19 storm. 19 And the three examples they give in their reply
20 Plaintiffs' error in this regard is that they're 20 brief are that after the reservoirs were constructed in
21 conflating foreseeability, which should be measured back 21 the 1940s, the United States reviewed and updated the
22 in the 1940s, when the Government actually acted, with 22 relevant hydrology. Second, the Corps re-evaluated the
23 the merits-based, reasonable investment-backed 23 dam safety risks. And third, Plaintiffs go back to
24 expectations of the Arkansas Game & Fish multifactor 24 this -- to the modifications -- the physical
25 test, which pretty clearly should apply when the 25 modifications to the dam, which included raising the
3252 3254
1 Plaintiff acquired his or her property. 1 main embankments.
2 So because they are measured at different times, 2 So for the first two points, yes, the Corps -- as
3 there's no contradiction here, and as we make clear in 3 the Corps has to do, the Corps reviewed and updated the
4 our post-trial memorandum, in our view -- and I think 4 relevant hydrology, it re-evaluated the dam safety risk,
5 it's clear from the trial testimony -- there was 5 and that analysis showed in the 1977 hydrology report
6 sufficient public information when Plaintiffs bought 6 that the -- the Corps anticipated for the first time
7 their properties that Plaintiffs had no reasonable 7 that the standard project flood pool would exceed the
8 expectation that their properties would never flood, and 8 government-owned land boundaries. But, again, that was
9 I'll return to that when we get to the Arkansas Game & 9 30 years after the project was constructed, 30 years
10 Fish multifactor test. 10 after foreseeability should be measured.
11 I'll just note that -- I'll put a placeholder for 11 And for the Plaintiffs' last point about the main
12 this so I don't forget. The Court -- 12 embankments, the Corps made modifications to the dams.
13 THE COURT: I won't let you forget, Mr. Shapiro. 13 They did raise the main embankments in the 1980s. What
14 MR. SHAPIRO: The Court had suggested that 14 Plaintiffs -- excuse me, what Mr. Charest said was that
15 perhaps the Government is arguing that reasonable 15 liability -- hopefully I'm not misquoting him, but
16 investment-backed expectations -- you didn't use this 16 here's what I wrote -- liability doesn't -- in their
17 phrase -- was sort of a "get out of jail free" card, and 17 view does not depend on the raised embankments. We
18 that if they had no reasonable investment-backed 18 agree, and that -- the reason that is is because the
19 expectations, therefore, their claim necessarily must 19 issue of the main embankments is not relevant to what
20 fail. That is not the argument we set forth in our 20 happened during Hurricane Harvey, and that is because
21 briefing. 21 the trial evidence on this showed -- and it was
22 Instead, what we are saying is that reasonable 22 undisputed -- that those actions, the raising of the
23 investment-backed expectations is one of the factors 23 main embankment, did not increase the size of the flood
24 that the Court must consider when going through the 24 pools that were created during Hurricane Harvey.
25 Arkansas Game & Fish factors and is relevant. It's 25 So if you look at -- I think it's page 8 of
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1 Plaintiffs' reply brief, they appear to concede that the 1 protection from a dam failure.
2 flood pools were lower than the elevation of the main 2 THE COURT: That's exactly right.
3 embankments. So the flood pools that actually were 3 MR. SHAPIRO: Exactly. But because the flood
4 generated by Hurricane Harvey never reached the top of 4 pool never reached a level that caused it to go over
5 the main embankments. In fact, they never reached the 5 that, it --
6 top of the old embankments. 6 THE COURT: Well, I think it did, actually, on
7 THE COURT: What they did actually -- well, any 7 the north end of Addicks, but we had conflicting
8 changes or modifications didn't appear to change the 8 testimony on that particular point.
9 elevation of -- I think of it as the spillways on the 9 MR. SHAPIRO: I'll address that very briefly --
10 ends of the arms of the dams. Is that correct? They 10 THE COURT: All right, if you need to.
11 just hardened the arms of the dams. 11 MR. SHAPIRO: I don't think it matters, but just
12 MR. SHAPIRO: Yes, that is correct. 12 so we're clear --
13 THE COURT: Right? 13 THE COURT: I'm not sure it does either.
14 MR. SHAPIRO: That's correct. 14 MR. SHAPIRO: -- the water never reached a level
15 THE COURT: Okay. 15 where it went over the hardened auxiliary spillways. It
16 MR. SHAPIRO: So before, you will recall we stood 16 went around it.
17 on the spillways -- 17 THE COURT: We had one witness who testified it
18 THE COURT: We did. 18 did and another who testified it went around to the
19 MR. SHAPIRO: -- and we saw where the -- I think 19 north through a warehouse that existed there. So there
20 they called it roller-compacted concrete is located at 20 is conflict in the testimony.
21 the end of the Addicks Dam where we stood -- 21 MR. SHAPIRO: My understanding is that it did
22 THE COURT: But we talked a little bit about 22 not. It went around and --
23 elevations and subsidence and things like that, and the 23 THE COURT: Right, I understand.
24 Court is still not explicit on the elevations because of 24 MR. SHAPIRO: -- that was the testimony.
25 the possibility of subsidence, but I don't know if we 25 Regarding subsidence, I don't think that is an
3256 3258
1 need to go there. 1 issue that the Court needs to address. It sounded like
2 MR. SHAPIRO: Yes. I'll address that in a 2 Mr. Charest agreed with that.
3 moment, but just to stick with the roller-compacted 3 So, in short, the Plaintiffs did not show that
4 concrete, I think -- well, I'm sure what the trial 4 the Corps intended to place water on these properties,
5 evidence on that was was that before the 5 to invade the trial properties, and they failed to show
6 roller-compacted concrete was added, the Corps dug 6 that the invasion was the natural, direct, or probable
7 down -- I'm not going to use the right terminology -- 7 result of a government action.
8 but they dug down into the preexisting embankments and 8 THE COURT: So you essentially concede causation
9 then put the roller-compacted concrete in place, so that 9 but not foreseeability.
10 the net result was you had the embankments at a 10 MR. SHAPIRO: Well, I will talk about causation
11 particular elevation that was just dirt, and as a result 11 at least with respect to the three properties. We do
12 of this roller-compacted concrete addition, it remained 12 have an argument with respect to those three properties.
13 at the exact same elevation, but instead of being dirt, 13 THE COURT: Right, okay.
14 it's now roller-compacted concrete. That didn't change 14 MR. SHAPIRO: Before I turn to that, though, I'll
15 the elevation or change the size of the flood pool that 15 move on to the next Ridge Line requirement, which is
16 could be held back during a large storm. 16 Ridge Line requires that a plaintiff show that the
17 THE COURT: Right. 17 Government's interference with the property interest was
18 MR. SHAPIRO: And it certainly had no impact 18 substantial and frequent enough to rise to the level of
19 during Hurricane Harvey, because -- 19 a taking. So, I mean, again, it's our view that is a
20 THE COURT: It just changed the flow 20 separate analysis than Arkansas Game & Fish. It is the
21 characteristics of the pool itself. You weren't relying 21 second part of the test to determine whether the Court
22 necessarily only on gates. You were relying on the 22 has jurisdiction to reach the merits question.
23 hardened, if you will, spillways at the ends of the arms 23 THE COURT: I would just point out that Arkansas
24 of the dam. 24 Game & Fish focuses on the character of the land at
25 MR. SHAPIRO: It provided some additional 25 issue, which is about the same thing.
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1 MR. SHAPIRO: Understood. 1 North County Hydroelectric Company, the Court
2 This was a single flood, an extraordinary 2 held that two floodings, maybe 20 years apart, did not
3 circumstance, the largest recorded rainfall event in 3 constitute inevitably recurring flooding. B. Amusement
4 U.S. history, and isolated invasions like this, a 4 Company held that one flooding did not constitute a
5 single-flood event, are not the kind of interference 5 taking.
6 that rise to the level of a constitutional violation. 6 Plaintiffs have failed to show that this is
7 So Plaintiffs first argue that despite the fact 7 inevitably recurring flooding based on the fact that
8 that they base their claim on a single flooding event 8 there has been one flood and the likelihood of this
9 during Hurricane Harvey, that the Court should conclude 9 occurring again is remote given the trial evidence on
10 that flooding is inevitably recurring, and that is 10 the recurrence interval for this storm.
11 obviously a term that appears in much of the cases that 11 So in their reply brief, then, Plaintiffs -- and
12 the parties cite. 12 I think today -- Mr. Charest tries to make a pitch that,
13 So, for example, Plaintiffs cite the Cress case 13 well, maybe we don't need to show inevitably recurring,
14 in their post-trial brief for the position that 14 that maybe the United States should be strictly liable
15 permanent liability is no different in kind from 15 for a one-flood event. And in the reply brief -- and I
16 intermittent but inevitably recurring overflows, but the 16 think this morning -- they rely on the case Stockton vs.
17 problem with Plaintiffs' argument here is that there was 17 United States for the proposition that one flood might
18 no evidence that flooding of this kind is inevitably 18 be sufficient and rise to the level of a taking,
19 recurring. Predicting if and when flooding like this 19 particularly here where the property is located upstream
20 might occur again on these properties from a Hurricane 20 of the dam, but this is a very different case.
21 Harvey-like event requires mere guesswork. 21 So in Stockton, the Corps had constructed a dam
22 And I don't want to keep repeating myself, but 22 on the Arkansas River and began to allow it to fill to
23 the probability that another Hurricane Harvey hits this 23 its maximum level of 597 feet. So unlike the Addicks
24 area and causes flooding like occurred in 2017 during 24 and Barker Reservoirs, which are dry dams and not
25 the life of a Plaintiff or during the life of 25 normally full of water, the dam at issue in Stockton was
3260 3262
1 Plaintiffs' ownership of any property interest is 1 intended to retain water at that level consistently and
2 extraordinarily low given the trial testimony on this. 2 repeatedly, and unlike in Addicks and Barker Reservoirs,
3 Harris County is 5000 years. Mr. Kappel, focusing on 3 where Plaintiffs' properties had experienced flooding
4 the two watersheds at issue, it was a 775- or 850-year 4 once in 70 years and then only during the massive
5 storm. And, again, Dr. Bedient's own expert report says 5 Hurricane Harvey event, the Stockton court based its
6 it's greater than a thousand-year storm in the area 6 conclusion on the fact that water levels at the dam had
7 around these two watersheds. 7 reached the maximum 597 feet three times in three years
8 So Plaintiffs do not cite any case where flooding 8 and that the United States "admitted that in the future
9 was found to be inevitably recurring based on one flood 9 the 597-foot level will be reached, on average, once
10 in a 70-year period given these types of probabilities, 10 every eight years." That is not even remotely
11 and the cases that the parties do rely on that have 11 comparable to the 800-year storm that is Hurricane
12 actually evaluated the issue have held that far more 12 Harvey that's at issue here.
13 likely events do not constitute inevitably recurring 13 So, in short, Plaintiffs have failed to show the
14 flooding. 14 second part of the Ridge Line tort versus taking test.
15 So, for example, the Fromme case, the United 15 They have failed to show that the interference was
16 States Court of Claims found that flooding that "can 16 substantial and frequent enough to rise to the level of
17 reasonably be expected to recur at intervals of about 17 a taking.
18 once in every 15 years on the average lacks the future 18 Finally, Ridge Line requires that Plaintiffs
19 prospect of intermittent and frequent floodings which 19 prove that an invasion must appropriate a benefit to the
20 the Supreme Court mentions in the Cress case. 20 Government at the expense of the property owner or at
21 There is a case, Bryant, which is at 216 Court of 21 least sort of preempt Plaintiffs' ownership for an
22 Claims 409. The Court there found that flooding 22 extended period of time rather than merely inflict an
23 occurring every 30 years "does not satisfy the proof 23 injury that reduces its value.
24 required to show that the government action has, in 24 So Plaintiffs argue that the Government --
25 effect, taken an easement over Plaintiffs' property." 25 because the project performed as intended, that must
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1 indicate that there was some government benefit that 1 affects so many people, it might take longer than
2 was acquired here, but the fact that the downstream 2 Plaintiffs would have liked to make the necessary
3 properties experienced less flooding does not describe 3 repairs and move back into their homes is not a result
4 an invasion that benefits the Government at the expense 4 of what the Government did; it's the result of a massive
5 of the property owner. It describes instead a situation 5 storm occurring. So, here, the proper duration should
6 where, during an enormously large storm, where the 6 be measured as the length of time that floodwater is
7 United States had no alternative action available to it, 7 inside the homes, and, again, that for most properties
8 where some private properties were going to flood no 8 was less than four days.
9 matter what the United States did, some property owners 9 I'll just mention damage here, and we'll return
10 benefited more than other property owners. That is not 10 to this in a few minutes, but the damage that did occur
11 the type of appropriation of a benefit for the 11 was repairable. So we went through every trial property
12 Government that somehow benefited federal land or 12 on Plaintiffs' side during their closing showing
13 produced some other governmental benefit. 13 photographs of damaged interiors, but what is important
14 Plaintiffs also argue, well, maybe the 14 to recognize is that all of those repairs have been made
15 Government -- this is at page 20 of their reply -- well, 15 or could be made for one or two of the properties.
16 maybe the Government can't complain of this because this 16 Everything that occurred here was repairable and placed
17 was a condition that it made when it constructed these 17 back to the condition that existed before the storm.
18 reservoirs. So Plaintiffs again go back to inaction, 18 So, I mean, Plaintiffs' real complaint is that
19 the Corps repeatedly rejected the idea of acquiring 19 they had to pay for those repairs, but that type of
20 property that would have prevented upstream flooding, 20 consequential injury is not an appropriation of a
21 but, again, those types of nonactions do not state a 21 benefit to the United States. It is, instead, as the
22 claim for a takings claim, and even if true, that would 22 Ridge Line Court says, an action that merely inflicts an
23 not demonstrate that the invasion benefited the 23 injury that reduces its value, and as that Court makes
24 Government at the expense of the Plaintiffs. 24 clear, that's not enough to rise to the level of a
25 And, finally, the flooding here did not preempt 25 taking.
3264 3266
1 Plaintiffs' ability to enjoy the property for an 1 In addition, Plaintiffs' argument ignores
2 extended period of time. The floodwaters stayed on the 2 entirely the substantial monetary and other support
3 properties for -- for most of the properties for less 3 already provided by FEMA and the other federal agencies
4 than four days, far shorter than the length of ownership 4 that was discussed at trial, as well as the substantial
5 of the property and far shorter than the length of other 5 financial support that's anticipated in the future. So,
6 cases examining the issue. And this is a separate 6 in short, the basis of Plaintiffs' claim that a flood
7 question really from the damage that occurred. We're 7 control project caused a single flood during a large and
8 talking about the length of actual invasion, and that 8 rare storm and resulted in repairable harm, that is a
9 was for most properties less than four days. 9 claim that should be brought as a tort, if at all, not
10 Well, Plaintiffs make a point of this. Well, 10 as a claimed violation of the Fifth Amendment. So the
11 they couldn't get back to their house and couldn't make 11 Court should dismiss the claim because the Court lacks
12 the repairs necessary for a much longer period of time. 12 jurisdiction over it.
13 That focuses on the wrong -- excuse me, the wrong time 13 Before I move on, I just want to stop and make
14 period, because it -- the government action here, as 14 one point just to underscore it at this point before I
15 alleged in the complaint, is the invasion by placing 15 talk about the next issue. As I mentioned, in our view,
16 water on these properties. It would be incorrect to 16 the Court need go no further, that the Plaintiffs' claim
17 focus on the longer period of time that the Plaintiffs 17 fails as a matter of law under the Ridge Line test.
18 are relying on because the Government has no control 18 Plaintiffs are arguing that a single flood with the
19 over the amount of time it might take any particular 19 remote possibility of another -- that another Hurricane
20 landowner to make repairs to his home. Those repairs 20 Harvey might strike the area again at some uncertain
21 might be delayed for reasons that have nothing at all to 21 point in the future should be evaluated as a
22 do with Addicks and Barker-related flooding. 22 permanent -- a permanently recurring-type taking, and we
23 Hundreds of thousands of people, millions of 23 disagree with that argument.
24 people in the Houston area were impacted by Hurricane 24 But if the Court agrees, it should then evaluate
25 Harvey, and the fact that, in a massive storm that 25 our other arguments, including assessing the merits of
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1 Plaintiffs' claims under the Arkansas Game & Fish 1 the property [sic] on the upstream property, and keeping
2 factors, and if liability is ultimately found on the 2 the gates open might have reduced the flooding on some
3 theory that Plaintiffs are espousing here, the Court 3 of the upstream properties, but it would have increased
4 should find that the interest taken is a permanent flood 4 the flooding on the downstream properties. That is the
5 easement over these properties. 5 very definition of a no-win situation. It is the
6 I've been talking for a while. Do you want to 6 definition of a zero-sum game. There, you help one
7 take our lunch break now, Your Honor, before I move on 7 group, and you hurt the other. You hurt one group, you
8 to my next point? 8 help the other.
9 THE COURT: It's actually up to the parties. I'm 9 THE COURT: Well, let me just stop for a moment.
10 willing to take it at any convenient time. I'm not 10 The Corps actually took credit for benefiting the
11 going to ask you how much more you have. I won't do 11 downstream properties, and it basically netted out the
12 that. 12 damage on the upstream side and said there was a net
13 Mr. Charest, do you have a view? 13 benefit to the community as a whole of, I don't know, $7
14 MR. CHAREST: From the Plaintiffs' perspective, 14 billion, or whatever it was, not quite, maybe $6.8
15 we are ready to keep going until we're done. We don't 15 billion, right?
16 need to stop. 16 MR. SHAPIRO: Yes, that -- I was actually going
17 THE COURT: Mr. Shapiro, what is your -- 17 to mention that fact, because that came up with
18 MR. SHAPIRO: Why don't I try to get through my 18 Mr. Charest.
19 next argument, and then we can take a break. 19 THE COURT: Okay. Well, it did, but --
20 THE COURT: All right. Let's do that. 20 MR. SHAPIRO: And that is true. The Corps'
21 MR. SHAPIRO: So before I talk about Arkansas 21 operation here, when presented with a no-win situation,
22 Game & Fish, I want to address a more preliminary issue, 22 they did the best they could under those circumstances,
23 and that is that liability is foreclosed here because 23 and the result of that was the saving of a significant
24 the Corps' actions were an exercise of government power 24 amount of dollars, 7 billion according to the document
25 to prevent loss of life and mitigate unavoidable damages 25 that Mr. Charest referenced, and as well as protecting
3268 3270
1 to private properties. 1 the safety and lives of the downstream property owners,
2 So in cases like Miller vs. Schoene and Mugler 2 and that is certainly correct.
3 vs. Kansas, a destruction or seizure of property is not 3 THE COURT: Well, certainly, there really was a
4 generally viewed as a compensable taking so long as the 4 benefit. Let's not ignore that fact in all the other
5 Government is acting to protect public health or safety. 5 problems with the damage upstream. The dams worked as
6 So the case law that interprets this says that the 6 expected and as designed, and the -- and they were
7 distinction between an exercise of the police power, as 7 operated under that set of constraints and conditions as
8 it's sometimes known, and a constitutional taking has 8 well and produced a significant benefit to the community
9 been characterized since the Mugler Court as "whether 9 as a whole.
10 the government action operates to secure a benefit for 10 MR. SHAPIRO: Exactly.
11 or to prevent a harm to the public," and that's a case 11 THE COURT: Right.
12 called Morton Thiokil, 4 Claims Court 625. 12 MR. SHAPIRO: That is the very definition in our
13 And then other courts, like Patty vs. U.S., 13 view of the application of the police power. That's
14 136 Fed. Cl. 211, say that when assessing this, to try 14 what the -- that's what it requires, Your Honor. It
15 to determine whether government action constitutes an 15 requires that -- what cases like Mugler vs. Kansas say
16 exercise of the police power, the relevant inquiry 16 is that a government action that might destroy a
17 should be on the character of the Government's action in 17 property cannot generally be viewed as a compensable
18 light of the particular circumstances of the case. 18 taking so long as the Government is acting to protect
19 So here the trial evidence showed why this 19 public health or safety.
20 doctrine applies. When Hurricane Harvey struck, the 20 THE COURT: Well, one of the problems with the
21 Corps found itself in a no-win situation, and we 21 application of the police power theories or the
22 characterized that correctly at trial and in our 22 necessity doctrines of this case has to do with intent
23 post-trial briefing as a zero-sum game scenario. 23 and foreseeability, but we will pass over that.
24 Keeping the gates at the dams closed may have helped the 24 MR. SHAPIRO: Well, I may turn to that as I go
25 downstream property owners, but it would have increased 25 through the rest of my argument on this point. I think
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1 one point that Plaintiffs tried to obfuscate, though, 1 decision-making that Plaintiffs claim is lacking is
2 here is this truly was a zero-sum game situation. They 2 built into the Water Control Manual, about how to
3 make an argument that it wasn't, but the evidence at 3 operate during and make operational decisions
4 trial was that it was, and that came from Mr. Thomas, it 4 during storms.
5 came from Dr. Nairn, and, tellingly, it came from 5 So the Corps did go through that analysis. It's
6 Plaintiffs' own expert, Dr. Bedient, who at page -- if I 6 not -- there's no requirement for application of the
7 have the page number correct -- 2096 agreed that this 7 Police Power Doctrine that the Corps make an
8 was a zero-sum game situation. 8 instantaneous decision that it hasn't thought through
9 And it was, because no matter what the Corps did 9 before.
10 in the moment of Hurricane Harvey, upstream properties 10 In addition, the Water Control Manual is a
11 were going to flood, downstream properties were going to 11 guidance document. The Corps is not bound to follow it.
12 flood, and you try to help one, you hurt the other. 12 Mr. Charest said that, well, there's no discretionary
13 That was the reality of the situation the Corps faced in 13 decision-making here during Hurricane Harvey. That is
14 light of that historic storm. 14 incorrect. In their reply brief, Plaintiffs make the
15 THE COURT: Well, except that the dams retained a 15 same point. They argue that the Government "did not
16 lot of water even on government-owned land, and that 16 make a single discretionary decision regarding the
17 protected downstream anyway. 17 operation of the gates during Harvey." That is wrong.
18 MR. SHAPIRO: That's true, yes. 18 Mr. Thomas explained that the Corps did exercise
19 THE COURT: We can't ignore that. 19 its discretion with regard to the draw-down plan as it
20 MR. SHAPIRO: That is certainly correct. 20 reduced the releases from the reservoirs during the
21 So despite what Dr. Bedient testified at trial 21 storm, and that's page 178 of the trial evidence. And
22 and what the actual trial evidence was, that, yes, this 22 contrary to Plaintiffs' argument, the trial evidence
23 was a zero-sum game, Plaintiffs say, well, this doesn't 23 also showed that the Corps did consider its options when
24 apply because -- and this is page 1 of their reply -- 24 Hurricane Harvey struck in order to decide what it was
25 well, the Corps had "already determined and planned to 25 going to do.
3272 3274
1 protect the downstream property owners at the expense of 1 So we can look at Plaintiff's Exhibit 1658, if we
2 those upstream" and that the Corps "made no emergency 2 can put it on the screen. Plaintiff's Exhibit 1658 is
3 decision that were contrary to the Water Control 3 an August 26th, 2017, email which copied several people,
4 Manual." That's Plaintiffs' language. So I want to 4 including -- this one came from Mr. Thomas, and in this
5 address those. 5 document, the Corps is discussing several proposed
6 First of all, the idea that this was not a 6 alternative actions, including placing sandbags at
7 zero-sum game, again, it contradicts all of the trial 7 various places or maxing out flows from the reservoir.
8 evidence on this point, including the opinion of 8 Oh, if we can go back up to the top.
9 Dr. Bedient. Second, the fact that the Corps followed 9 And Mr. Thomas responds to those proposals, and
10 the Water Control Manual does not mean that the Police 10 at trial he discussed some of the internal discussions
11 Power Doctrine does not apply. This is so because the 11 about how the project should be operated, but in this
12 evidence showed that no matter what the Corps did, 12 email response, he explains that if the Corps -- maybe
13 upstream and downstream properties were going to flood, 13 the Corps could release more water faster, but if it did
14 and decreasing flooding on one group would increase the 14 that, it would flood downstream properties more. And
15 flooding on the other, and vice versa. 15 the sandbag idea was not feasible, although it was given
16 And why is that? Because Hurricane Harvey was a 16 some consideration, but -- and then also Mr. Thomas
17 massive storm, and it created historically large, 17 mentions in this email that even if the Corps did
18 dangerous flood pools which had never occurred before in 18 increase releases, that would not "guarantee that we
19 the history of the project. And given that extreme 19 don't flood upstream houses." So the Corps did consider
20 circumstance, the Corps did what it could to protect the 20 its options. It did not robotically follow some set
21 public health, properties, and save lives, and that is 21 operational criteria.
22 what cases like Miller vs. Schoene require. 22 And then, finally, Plaintiffs argue that the
23 So, in addition, Plaintiffs' argument ignores the 23 Police Power Doctrine cannot apply here because this was
24 fact that, first of all, the Water Control Manual did 24 not an emergency, but the word "emergency" does not
25 not just magically appear out of thin air. The 25 appear in the Miller vs. Schoene decision. The Miller
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1 court instead states that "When forced to such a choice, 1 the Plaintiffs repeatedly quote the line from Armstrong,
2 the state does not exceed its constitutional powers by 2 the Supreme Court case from the 1960s, that the takings
3 deciding upon the destruction of one class of property 3 clause is "designed to bar government from forcing some
4 in order to save another which, in the judgment of the 4 people alone to bear public burdens which in all
5 legislature, is of greater value to the public." And 5 fairness and justice should be borne by the public as a
6 that is this situation. 6 whole," but what they seem to forget is that theirs were
7 The United States, as Mr. Charest underscored in 7 not the only properties to flood during Hurricane
8 his comments, the calculations show that it was almost a 8 Harvey.
9 $7 billion net savings as a result of the operation of 9 As we argue this case, in this particular moment,
10 the reservoirs. Now, is that the right decision? Is it 10 and you can see sitting back here -- at least he was
11 the wrong decision? I am but a mere Department of 11 here at one point -- one of the downstream Plaintiffs'
12 Justice trial attorney. I don't know. I'm not the one 12 counsel is here to see how this goes, but as we are
13 that has to make those decisions, but Congress did, and 13 arguing this case, there is another set of Plaintiffs
14 the Corps followed those directives, and its actions 14 whose properties are located downstream of the
15 saved properties and it saved lives, and that is enough 15 reservoirs, hundreds of properties, who argue that the
16 to show that the Police Power Doctrine applies. 16 Court should have kept more water behind the reservoirs.
17 Even if emergency -- even if an emergency 17 They're taking exactly the opposite position than
18 situation is required, as Plaintiffs incorrectly argue, 18 Plaintiffs here are taking, whereas Plaintiffs here are
19 this was an emergency. Mr. Thomas explained that 19 arguing that the Corps should have released more water
20 Colonel Zetterstrom issued a general emergency around 20 from the reservoirs.
21 August 25th which covered dam safety. That's page 118 21 Plaintiffs were not --
22 to 119 of the trial transcript. 22 THE COURT: I'm not sure they're arguing that in
23 He explained that the Corps followed emergency 23 this particular case.
24 level one and emergency level two, as set forth in the 24 MR. SHAPIRO: I appreciate the Court's comments,
25 Emergency Action Plan, and we can take a look at that. 25 but I think effectively that's what they must be
3276 3278
1 That's JX 118. 1 saying --
2 So this is the page ending in 19817 and 18, and 2 THE COURT: Well --
3 we're showing both here on the screen, and what these 3 MR. SHAPIRO: -- that the Corps took their
4 describe is emergency level one activities that the 4 property by retaining water that should not have been
5 Corps should be taking in certain emergency situations, 5 retained on their property.
6 when, for example, there's seepage; and then emergency 6 THE COURT: I don't know about "should not have
7 level two, when there is a -- the pool has developed 7 been retained." That's part of the problem.
8 even further, and here, as the Court knows, there was 8 MR. SHAPIRO: Well, if the Corps had not done
9 water going around the end of the -- the northern end of 9 what it did and it had kept the gates open, the trial
10 Addicks. So the Court was following emergency action 10 evidence is very clear that the downstream properties
11 one, emergency action two, because Colonel Zetterstrom 11 would have flooded more.
12 had already declared an emergency situation, and this, 12 THE COURT: Exactly, but that is not necessarily
13 in fact, was an emergency situation. I think the 13 the Plaintiffs' argument in this case.
14 President of the United States also declared this as an 14 MR. SHAPIRO: Understood.
15 emergency situation, as did the Governor of Texas. 15 The point I want to make, though, is that the
16 The Corps activated the Addicks and Barker 16 Plaintiffs were not singled out to bear some public
17 Emergency Coordination Team once the size of the storm 17 burden. Plaintiffs upstream flooded, Plaintiffs
18 became clear, further indication that this was an 18 downstream flooded, Plaintiffs far away from the
19 emergency -- a growing emergency situation. Mr. Thomas 19 reservoir flooded. So in Harris County's 2018 Federal
20 explained at trial that there was a risk of dam failure 20 Report, which is admitted into evidence as DX 737, that
21 during the storm because this was the largest storm to 21 notes that 4.7 million people were impacted by Hurricane
22 ever hit the upper watersheds in the history of the 22 Harvey in Harris County.
23 projects, and that's page 119 to 120 of Mr. Thomas' 23 This was an emergency situation. The Corps acted
24 testimony. 24 to reduce and mitigate unavoidable harms to the public.
25 So as I complete my discussion of this doctrine, 25 The effect of the Corps' actions, as Mr. Charest
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1 underscored, was to save a net -- according to that one 1 Your Honor, I want to turn now to the causation
2 document -- was to save a net of approximately $7 2 question. So in order to prove causation under the
3 billion. Plaintiffs' properties were damaged as part of 3 St. Bernard Parish line of cases, the Court needs to
4 that action to protect public health and safety, and 4 compare what actually happened with what would have
5 under established Supreme Court precedent that we cite 5 happened in the absence of any federal action. So when
6 in our brief and that I've discussed here today, their 6 we started this case, we had to ask ourselves, what
7 claims cannot succeed as a Fifth Amendment takings 7 would this have looked like if the project had not been
8 claim. 8 constructed?
9 So with that, Your Honor, this might be a good 9 Well, what that would mean is that there would be
10 break point for a lunch if the Court is willing. 10 no dam, there would be no reservoirs, and it would also
11 THE COURT: Let's do that. Let's take about 55 11 mean that the Corps would not have granted the easements
12 minutes for luncheon. We'll come back at -- reconvene 12 to allow upstream developers to move water off of the
13 at 2:00 if that's satisfactory. 13 upstream properties into the nonexistent reservoirs.
14 Mr. Shapiro? 14 So when one considers the no-project scenario,
15 MR. SHAPIRO: Yes, Your Honor. 15 one has to remove those upstream channels that the Corps
16 THE COURT: Mr. Charest? 16 granted through the outgrants because those simply would
17 MR. CHAREST: Of course, sir. 17 not exist in the no-project world.
18 THE COURT: We'll do it. 18 So we can look at -- Dawn, please -- Defendant's
19 (Lunch recess, 1:05 p.m. to 2:00 p.m.) 19 Exhibit 800 and 801, which is just two exhibits that
20 20 were introduced at trial that show the location of the
21 21 outgrants that were made, and that -- and the testimony
22 22 showed that those outgrants allow water to move off of
23 23 the upstream properties and move water into the two
24 24 reservoirs.
25 25 So Plaintiffs did not consider the impacts of
3280 3282
1 AFTERNOON SESSION 1 those outgrants, and so really they have failed to meet
2 (2:02 p.m.) 2 their burden of proof with regard to causation with
3 THE COURT: Please be seated. Welcome back. 3 respect to the burdened Micu and Giron properties, which
4 We are encouraged by the people who are listening 4 Dr. Nairn's analysis showed would have flooded if the
5 in Houston to ask that counsel speak clearly enough and 5 Corps had not granted -- had not built those projects in
6 within reasonable proximity to the microphone so they 6 sort of the no-project scenario, tied together with the
7 can hear as well. 7 testimony of Mr. Hooper, who showed that the amount of
8 MR. CHAREST: Yes, sir. 8 flooding, although less under the no-project run, the
9 THE COURT: All right. Mr. Shapiro, you may 9 amount of damage would have been effectively the same in
10 continue. 10 the no-project run for those properties.
11 MR. SHAPIRO: Yes, sir. Is this the microphone 11 I think that Burnham provides the easiest
12 here? 12 property to describe this. As I think Plaintiffs'
13 THE COURT: Yes. 13 counsel said during their closing, correctly -- and I
14 MR. SHAPIRO: Okay. There's a red button on it. 14 think this was Mr. Easterby -- the Burnham property
15 Do I need to -- is it -- maybe it's off? I don't know. 15 flooded three feet during the Tax Day Storm. The
16 THE COURT: Lawrence, can you check? I don't 16 Burnham property is located in the hundred-year
17 think the -- 17 floodplain and was located in the hundred-year
18 LAW CLERK: It's live. It's live. 18 floodplain when Hurricane Harvey hit. So, I mean, the
19 THE COURT: Okay. 19 idea that the Burnham property, just to take the
20 Mr. Shapiro, you may proceed. 20 example, is going to flood during an 850-year storm, I
21 MR. SHAPIRO: Thank you, Your Honor, and I will 21 mean, should not be a surprise to anyone.
22 do my best to try to project, so -- 22 It was with regard to this property, in
23 THE COURT: You're fine. In your ordinary voice, 23 particular, that we tried to focus or I tried to focus
24 you're fine. 24 at trial to get -- to try to understand what Dr. Bedient
25 MR. SHAPIRO: Thank you. 25 had actually done in his analysis, and we focused on
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1 this property, in particular, because this was where 1 standard methodology, and Dr. Nairn's use of that data
2 Dr. Bedient -- this was a situation where Dr. Bedient 2 was also correct.
3 changed his expert testimony the day before trial 3 And then, finally, Mr. Charest pointed to the
4 started when we got a new expert report which had 4 Upper Buffalo Bayou gauge, which he claims Dr. Nairn
5 different numbers for the Bedient [sic] property and a 5 wrongly said was reading data erroneously, but this
6 few of the others. 6 really can't be a disputed issue given the trial data on
7 We have now seen a hundred -- at least a hundred 7 this point. Unlike the other gauges in this area, this
8 pages of post-trial briefing from Plaintiffs, and even 8 gauge did not show an early peak during the early part
9 this morning, the explanation of what calculation 9 of the storm when there was a great deal of rainfall.
10 Dr. Bedient did in order to reach whatever conclusion he 10 The field notes for this Upper Buffalo Bayou
11 might have reached with regard to the Bedient [sic] 11 gauge show that the crest gauge pipe was impacted by
12 property, in particular, remains unclear. 12 vegetation, and that's Plaintiff's Exhibit 155. And
13 We've made responses to the other arguments that 13 after the fact, it is correct that the United States --
14 Plaintiffs have made with regard to the expert analyses 14 the USGS did release a correction for this gauge. So
15 in our post-trial brief, and we discussed Dr. Nairn's 15 the USGS -- Mr. Charest claimed, well, why didn't we ask
16 testimony as well as Dr. Bedient's testimony, and I want 16 any questions to the USGS witness? Well, Plaintiffs
17 to leave most of those questions, just we will rely on 17 didn't ask any questions to Mr. East either.
18 our briefing for that, but there were a couple points 18 And it remains a fact, as was demonstrated at
19 that Mr. Charest brought up during his closing that I 19 trial, that USGS, in fact, did issue a correction to
20 want to touch on. 20 this gauge. So USGS knew that there was some kind of
21 So, first of all, Mr. Charest said that the error 21 issue going on with this. What Dr. Nairn explained at
22 rate in Dr. Nairn's report was one foot. He may have 22 trial was one explanation of why that might be, and that
23 misspoken at one point and said it was three feet. That 23 was the vegetation that was noted in the field notes,
24 is really a bit misleading. Dr. Nairn testified that 24 PX 155. Our other arguments with regard to Dr. Nairn's
25 one of the runs, the actual Harvey run, at one point in 25 and Dr. Bedient's reports are set forth in our memo.
3284 3286
1 time had a -- was overpredicting by approximately a 1 But I want to turn back now to the outgrant issue
2 foot, but that is not true for the no-project run, and 2 and why Plaintiffs believe that the Court should just
3 it's not true for the other runs that Dr. Nairn did. 3 ignore the outgrant issues. As we read their briefing,
4 For the no-project run, if I have my number 4 they've offered three reasons. First, they argue that
5 correct, Dr. Nairn's modeling effort was more precise. 5 the outgrants are not federal projects, and they argue
6 It was in the neighborhood of 0.3 feet. So the one foot 6 that at page 31 of their reply. But what that ignores
7 that Plaintiff -- that Mr. Charest has repeated during 7 is that the Corps issued those outgrants, they exist
8 his closing, that's simply not the fact for the 8 only because the project exists, and they are physically
9 no-project run. 9 located on federal property. But for the project, these
10 Second, Mr. Charest testified -- argued that 10 federal easements would not exist. So as we detail in
11 Dr. Nairn had used bad information about the weather and 11 our post-trial brief at pages 16 and 17, in a table
12 that he had, according to Plaintiffs, wrongly relied on 12 there, the federal justification for those channels is
13 the analysis that was conducted by Mr. Kappel regarding 13 precisely because of the flood control benefits that
14 the weather analysis and the rainfall analysis. He 14 those provide to upstream properties.
15 claimed that Mr. Kappel had picked selective data 15 Second, Plaintiffs argue that the outgrants were
16 sources. 16 irrelevant because they were never intended to provide
17 The trial testimony on this was clear. 17 upstream protection against project-induced flooding,
18 Mr. Kappel used more rainfall sources, as is the 18 but the outgrants themselves show that the outgrants
19 standard approach in efforts like this, and so he used 19 were granted by the Corps to allow water to flow from
20 the state-of-the-art data that was available. He was 20 the upstream properties more quickly into the
21 correct to use as many different data sources as he 21 reservoirs. So the documents make clear that without
22 could because the rainfall at different areas was not 22 those outgrants, several of the properties would have no
23 the same; it was spatially variable. And so 23 alternative way of moving water off of the property, and
24 Mr. Kappel's analysis incorporates that and reflects 24 that leads to Plaintiffs' last point.
25 that, and his analysis was state of the art according to 25 They make the argument that the easements were
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1 not essential to the upstream development, and they make 1 multifactor test in our brief. It's on length, and we
2 the point in their reply brief that Ms. Johnson-Muic's 2 tried to address -- well, we do address each of the
3 allegation that the outgrants were the only means to 3 properties individually. So I am not going to spend the
4 drain upstream areas is simply not true, but 4 time to respond to the comments by other counsel on
5 Ms. Johnson-Muic was simply testifying to what the 5 Plaintiffs' side today. That's all set forth in our
6 documents themselves say, and she correctly noted that 6 brief in regard to each of the individual properties,
7 several of the outgrants documented that those outgrants 7 but I do want to focus just on a few of the Arkansas
8 were the only viable alternative available to reduce 8 Game & Fish factors.
9 flooding. 9 First, the character of the Plaintiffs' land. So
10 So, for example, DX 130 stated that draining into 10 that is one of the factors that Arkansas Game & Fish
11 the reservoir was the only viable alternative and 11 identifies. The upstream properties flooded because
12 necessary to prevent flooding. DX 94 and DX 95 both 12 homes -- for the most part anyway, homes were built
13 state that without the outgrants, frequent flooding 13 decades after the reservoir's construction in areas
14 would render these upland -- upstream lands 14 subject to controlled inundation, so within an area that
15 undevelopable. And DX 152 states that the only feasible 15 would flood under certain large storms.
16 and economic option to reduce flooding was construction 16 So the character of Plaintiffs' property at the
17 of a bypass channel on government lands. So, 17 time they bought it, their property, and the time --
18 Ms. Johnson-Muic's testimony is fully consistent with 18 excuse me, at the time that the takings accrued was in a
19 the documents that she was tasked with interpreting at 19 location that has always been prone to flooding during
20 trial. 20 large storms, located behind a federal reservoir that
21 Finally, I want to turn to the Arkansas Game & 21 could, under extreme storm conditions, impound large
22 Fish factors. So if the Court does reach the merits of 22 pools that might impact those properties. That is the
23 Plaintiffs' claims, it should reject those claims under 23 character of Plaintiffs' property.
24 the multifactor test articulated in Arkansas Game & 24 Duration is one of the elements that the Court is
25 Fish. So there has been some dispute from Plaintiffs 25 to consider under Arkansas Game & Fish, and there's a
3288 3290
1 about whether the Arkansas Game & Fish multifactor test 1 dispute between the parties about how to measure the
2 applies. I mean, what Arkansas Game & Fish says is that 2 duration, which I've touched on earlier. The
3 government-induced flooding of limited duration may be 3 appropriate time period is the time period that the
4 compensable in some circumstances but that the Court 4 water is inside the property, and I've explained this
5 must "weigh carefully the relevant factors and 5 before, but just to highlight this point, the reason for
6 circumstances of each case." 6 that is is if that is the government action -- according
7 So what we hear Plaintiffs arguing is that the 7 to Plaintiff, placing water on the upstream
8 Court should just ignore the Arkansas Game & Fish 8 properties -- the amount of time it might take
9 factors and apply a per se taking rule because this 9 Plaintiffs to get the necessary materials to complete
10 involves a physical taking, but Arkansas Game & Fish 10 their repairs depends on a variety of issues that have
11 also dealt with a physical takings claim. It was a 11 nothing to do with the Federal Government, including the
12 temporary, recurring flooding situation, and as Your 12 fact that Hurricane Harvey had widespread impacts across
13 Honor knows, the Court -- 13 the Houston area.
14 THE COURT: And as you know, Mr. Shapiro. 14 And it also depends on decisions -- individual
15 MR. SHAPIRO: Yes, Your Honor. 15 decisions made by the individual property owners about
16 -- where you held, Your Honor, that the 16 how and when to make repairs to individual properties.
17 Commission's property experienced six years of repeated 17 Those are questions that are outside the government
18 inundation as a result of the Corps' deviations from the 18 action and point to the fact that the duration should be
19 Water Control Manual. So acceptance of Plaintiffs' 19 measured as of -- for the length of time that the
20 position here would result in a bizarre anomaly. The 20 water's inside the property. When addressing this,
21 Supreme Court -- 21 Mr. Charest said, well, he thought that the duration
22 THE COURT: The Court is not going to do that. 22 should be measured as, you know, much longer, perhaps
23 Let's go forward. 23 months or years, but I didn't hear him cite a single
24 MR. SHAPIRO: Very good. 24 case that would support that position.
25 We discuss the merits of our Arkansas Game & Fish 25 Severity is another element, and we discussed
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1 this in our briefing. Mr. Charest said that, well, the 1 law because this wasn't part of the briefing.
2 Government did not call a -- one of our expert -- our 2 I want to turn to the reasonable investment-
3 potential experts to rebut testimony that was provided 3 backed expectations, which is identified by the Supreme
4 by Bell and Deal at trial, and he attempted to derive 4 Court as a relevant consideration. So as we discussed
5 some sort of negative inference from -- 5 in our post-trial brief, sufficient information existed
6 THE COURT: The Court will not do that. 6 at the time of each of the Plaintiffs' acquisitions that
7 MR. SHAPIRO: -- our decision on -- thank you. 7 they knew or should have known about the possibility of
8 The reason we don't need to rebut that testimony, 8 upstream flooding. So Plaintiffs -- and, again, today
9 Your Honor, is that that was not compelling in any way. 9 Mr. Charest says, well, the landowners testified
10 What that testimony was was a -- was raw data, 10 uniformly that they didn't have subjective knowledge
11 unadjusted; it was not an appraisal; there was no 11 that their properties might flood, and they repeat that
12 adjustments made by Bell or Deal; and, tellingly, it was 12 in the reply, for example, at page 22. But reasonable
13 not property-specific at all. So one could look at that 13 investment-backed expectations are measured as an
14 information and draw no conclusions about any particular 14 objective test, not a subjective test.
15 property. 15 And so here today and then also in their
16 THE COURT: Is this argument affected by the 16 briefing, they make the argument, well, the Court didn't
17 recently passed Texas statute? 17 allow Dr. Galloway to testify, therefore, we didn't --
18 MR. SHAPIRO: There is no evidence about that 18 we failed to make our showing with regard to reasonable
19 that was presented at trial -- 19 investment-backed expectations, but that's incorrect.
20 THE COURT: No, but the Court can and must take 20 We relied on the wealth of data that was available in
21 judicial notice of the new statute. 21 the public sphere to the landowners and other members of
22 MR. SHAPIRO: Well, what I heard Mr. Charest say 22 the public that revealed and showed the possibility of
23 was that -- and I'm going to try -- I'm going to quote 23 upstream flooding.
24 him directly -- "Imagine what is going to happen to 24 Mr. Charest talked about, well, driving around,
25 prices as a result of having to, according to 25 certainly he would not have the feeling that maybe these
3292 3294
1 Mr. Charest, having to make this notification based on 1 properties would flood, but our position doesn't rest on
2 this new Texas law." Well, asking the Court to imagine 2 what one attorney might think about when he's driving
3 is not evidence, so that's the problem with this 3 through a reservoir. It depends on what is in the trial
4 argument. He's asking you to just imagine that maybe 4 evidence, and that was replete with information that
5 there's going to be a reduction in the price as a result 5 supports our position.
6 of something the Federal Government did not do, 6 For example, the publicly available maps showing
7 something the -- apparently the state has done, 7 the possibility of upstream flooding that had been
8 according to him, that's going to require certain 8 available for years and decades; public discussions
9 disclosures. That's not something that we have done. 9 about upstream flooding risks in the 1980s and 1990s;
10 It's something that the state is requiring. 10 the Corps' discussion of the possibility of upstream
11 THE COURT: Well, the Court would not do that. 11 flood risks with developers in the 1980s and 1990s; the
12 We are not at the damages stage of this case. We are 12 written warning language included in the four Bend
13 still at liability, though we're talking about severity 13 County subdivision plats by the early 1990s; Harris
14 in terms of the overall generic impact, right? 14 County Flood Control District's warning about flooding
15 MR. SHAPIRO: Yes, correct. So this new statute 15 risk; the March 1992 flood pool that demonstrated the
16 that Mr. Charest raises for the first point -- for the 16 possibility of upstream flooding; the 1995
17 first time in his closing argument, it's not relevant 17 Reconnaissance Report which publicly discussed the
18 for purposes of determining the severity. And even if 18 possibility of upstream flooding; the 1996 Harris County
19 it were, it's not something that the Federal Government 19 Flood Control District Public Report that discussed the
20 did; it's something that another governmental body has 20 possibility of upstream flooding and that was discussed
21 done. And beyond that, it sounds like, from 21 in the local newspaper, The Houston Chronicle; and
22 Mr. Charest's description of it, what it requires is 22 public meetings in 2009 and 2010 that also discussed the
23 some sort of disclosure of the fact that the property 23 possibility of upstream flooding.
24 might be behind the reservoir. Well, that has always 24 Plaintiffs repeatedly say that how could they
25 been the case. I don't know the details of the state 25 have possibly expected their properties to flood, but
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1 just to take one example, many of the properties were in 1 for the dams, and that's what the expert work showed.
2 or near the 500-year flood hazard zone using the FEMA 2 So the notion that it's the rain's fault, not the dams'
3 flood maps. They are part of the record and have been 3 fault, just does not lie. That's literally what the
4 long available to the public. How can anyone claim 4 experts proved.
5 surprise that their properties flooded when a 775-year 5 First off, both of them agree that the maximum
6 or 850-year storm, like Hurricane Harvey, happened? 6 level was only because of the dams. Ten out of the 13,
7 For those reasons, Plaintiffs have failed to meet 7 they both agree that the rain would have passed on by
8 their burden of proof under the Arkansas Game & Fish 8 these homes and done no harm whatsoever. So what
9 multifactor test, and that provides an additional reason 9 they're -- only three are in dispute, and factually, we
10 why the Court should reject their claims. Our 10 have the better of it by far, but the facts in this
11 post-trial memorandum -- I won't call it a brief -- 11 case, the trial proved that the rain would have fallen
12 memorandum discusses our remaining arguments, and we'll 12 but for the dams and gone down and gone into downtown
13 rest on those with respect to those other issues. 13 Houston and Buffalo Bayou and into the ship channel.
14 THE COURT: You're kind in not calling it a 14 The Government took the decision long ago to
15 brief. 15 protect those downstream areas by building the Addicks
16 MR. SHAPIRO: I do want to close just by 16 and Barker Dams, and that is --
17 returning to a fact that really should not be disputed, 17 And, Matt, can you give me the slide from the
18 that flooding on private properties in 2017 occurred 18 opening, Number 5, please?
19 because Hurricane Harvey dropped a massive amount of 19 The decision to do so was literally the exercise
20 rainfall after it stalled and lingered over the Addicks 20 of the governmental authority. It was the imposition of
21 and Barker watersheds. The Supreme Court in Arkansas 21 the risk of and later -- later recognition of the risk
22 Game & Fish called its decision "modest" and "not one 22 of damage -- well, I will just read it to you.
23 that augurs a deluge of takings liability." The case 23 "The Takings Clause is 'designed to bar
24 that Plaintiffs are pursuing here runs afoul of that 24 Government from forcing some people alone'" -- that's
25 characterization. 25 the upstream Plaintiffs here -- "'to bear the public
3296 3298
1 The idea that the Fifth Amendment should be used 1 burdens which, in all fairness and justice, should be
2 to pay for repairs from a one-time flooding event 2 borne by the public as a whole.'"
3 stemming from a flood risk reduction project constructed 3 So the Government's decision was to take that
4 decades before Plaintiffs' acquisition, which resulted 4 potential damage for all downstream, put it all into a
5 in repairable damage, in a situation where the Corps had 5 tight package, and impose it directly on the upstream
6 no viable alternative ways to prevent flooding on 6 Plaintiffs, and that -- and the Government can make that
7 private properties, during the largest storm in the 7 decision. It's not for me to say that's right or wrong,
8 recorded history of the United States, is an extreme 8 but it did that decision. It is the quintessential
9 position, and it's one that should be rejected by the 9 exercise of a Fifth Amendment power.
10 Court. 10 But the corresponding portion of that is the
11 So for those reasons, Your Honor, and for the 11 owners of those private properties are entitled to
12 additional reasons set forth in our briefing, 12 compensation. It's as simple as that. This really is a
13 Plaintiffs' claims should be rejected and judgment 13 very simple case. Because the Government physically
14 entered in favor of the United States. 14 takes possession of an interest in property for a public
15 THE COURT: Thank you, Mr. Shapiro. 15 purpose, it, therefore, has a categorical duty to
16 MR. SHAPIRO: Thank you, Your Honor. 16 compensate the owner. That is the law.
17 THE COURT: Mr. Charest, a response or any reply? 17 So let's talk about the points that the
18 MR. CHAREST: Yes, sir. Thank you. 18 Government made today. First we heard from the -- an
19 We sort of ended that discussion where it began, 19 old rendition of "the one-time flood hits here." The
20 and it's just really telling. The Government keeps 20 Government's view on one-time flood literally runs
21 saying the homes flooded because of the rain. The homes 21 counter to Stockton and Quebedeaux, and they're focused
22 flooded because of the dams, not because of the rain. 22 on periodicity, in particular. Quebedeaux already
23 If the rain had fallen and the dams weren't there, that 23 addresses this.
24 water would have gone past these homes and done terrible 24 THE COURT: Well, let's talk a little bit about
25 damage downstream. That's what would have happened but 25 whether or not it was a one-time flood.
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1 MR. CHAREST: Sure. 1 THE COURT: Yes.
2 THE COURT: As the trial record was developed, it 2 MR. CHAREST: That's exactly right.
3 appeared that the rainfall amounts in Harvey were 3 And so they keep -- they also started the
4 roughly or almost exactly equivalent to those that fell 4 argument with we didn't -- the Corps didn't intend to
5 in the Hearne Storm. Is that right or wrong? 5 flood anybody. Well, that's like saying I intend to
6 MR. CHAREST: That is correct, sir. That is 6 hold the gun in my hand and I intend to pull the
7 exactly correct. The amount of rain that fell -- 7 trigger, but I don't intend to shoot you. I mean, they
8 there's -- you know, over time and intensities and 8 intended to build the dam, there is no mistaking that;
9 locations, but fundamentally, in terms of the big 9 they intended to retain water -- detain water with the
10 picture, the amount of rain that fell in Hearne is the 10 dam, no mistaking that; and they intended, if that level
11 same amount of rain that fell over the watershed in 11 of storm happened, to put stormwater onto private
12 Harvey. 12 properties.
13 THE COURT: A different watershed. 13 They just were hoping maybe that the storm
14 MR. CHAREST: Well, it's a different watershed, 14 wouldn't happen, but that's not -- that doesn't address
15 but the reason I say "over the watershed" with that 15 intent in terms of a legal question, and we have to
16 inflection is because we keep seeing this from the 16 remember the testimony in the trial, sir, was that the
17 Government, like the sort of periodicity games. They 17 dams operated "as intended." And Mr. Long said that it
18 say, well, Harvey was unprecedented. If you hear what 18 was by design and intent they imposed water on the
19 they say next, they say in -- you know, over the 19 private property, all right? I think I have that quote
20 watershed, unprecedented over the watershed. So they 20 here. Where am I at? Well, anyway, that's what he
21 want to zoom in to just the watershed and say that this 21 said.
22 amount of rain has never happened before here. That is 22 And going further on than that, we talked about,
23 a true statement. 23 again, they built a dam to hold the 1899 Hearne Storm
24 But when you're talking about unprecedented or 24 but only purchased enough land to deal with the 1935
25 impossible to occur over top of a watershed, you don't 25 storm. The decision to only buy the 1935 storm level
3300 3302
1 look at just the watershed; you look at the surrounding 1 amount of land was not because of unlikelihood of the
2 region. In Harvey, the amount of rain that fell over 2 event happening but, rather, to save money. It was a
3 the watershed during Harvey was not an unprecedented 3 cost-benefit analysis that they looked at and said we
4 event. You have Hearne, you have Allison, you have 4 don't need to make that expenditure, and that's in Joint
5 Claudette, you have a whole bunch of ones that come in 5 Exhibit 5. It's the Definite Project Report.
6 very close, and you have the 1938 document, the Exhibit 6 They knew the Hearne Storm was out there, and
7 B document, going through the meteorology, explaining 7 they knew that the Hearne Storm should be used to plan
8 why it makes sense to understand that Hearne likely 8 for any storm event that happened in the Gulf Coast
9 could happen over the watershed. 9 area, but they decided to save money and not spend the
10 And by comparison, though, when they say Harvey 10 additional amount that was necessary to buy the land
11 was the largest rainfall ever, they're talking about 11 that would cover that reservoir.
12 areas not over the watershed. Now they zoom out and 12 THE COURT: Do you agree that the test on
13 say, oh, yeah, we had these massive amounts of rain. 13 foreseeability is reasonably foreseeable?
14 Also true, but not accurate, because it's true to say 30 14 MR. CHAREST: Yes, sir. Yes, sir.
15 miles or so the east, there was a massive amount of rain 15 THE COURT: Okay.
16 from Harvey, but that rainfall did not occur over the 16 MR. CHAREST: I would also -- I would
17 watershed. The amount that was over the watershed was 17 counterweight that with saying we can also get there by
18 the Hearne Storm level, not the massive amount, largest 18 proving intent, which we absolutely have, and I think
19 ever. 19 it's reasonably foreseeable anyway, but fair enough.
20 THE COURT: Well, if the Court recalls correctly, 20 And in this case, I would even say one more thing, it
21 the area to the east was close to the Gulf. 21 was foreseen, okay? They looked at the Hearne Storm and
22 MR. CHAREST: Yes, sir. 22 said this is the type of storm -- a very bad storm --
23 THE COURT: Right. I think I remember that. 23 but the type that we can anticipate would happen here,
24 MR. CHAREST: That's exactly right. If you look 24 all right?
25 at a map, it's that dark, dark blue on the right. 25 What else? We have -- again, we talked about the
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1 unprecedented nature and the sort of word games that are 1 Court's motion to dismiss, "It was not that the
2 going on there. On the foreseeability aspect, with 2 Government had to respond to Tropical Storm Harvey as an
3 respect to, again, the Definite Project Report -- 3 emergency that necessitated the flooding of private land
4 Matt, can you give me Joint Exhibit 5 at 17 of 4 but, rather, that the design of the dams and the
5 the report? It's 129518 for the Bates. 5 Government's procedures for operating them all put in
6 This says, "The acquisition to this design 6 place well before Harvey arrived." And that's what I've
7 storm" -- they're calling the storm -- that's the Hearne 7 been saying before and would be consistent with what the
8 Storm -- "is considered advisable as a future 8 Court had previously ruled.
9 development of the entire area appears probable" -- 9 This is not an emergency like a fire or some sort
10 talking about the development of the land and houses -- 10 of liquid, you know -- well, you know, that's a wrong
11 "and which can be expected to occur at least once in the 11 description, but since it's a fluid, I will go with that
12 life of the project," which is a 50-year project 12 one -- something that didn't require real-time
13 horizon. "Flooding damages may be expected to exceed 13 consideration. Obviously, they are paying attention to
14 greatly the present value of the land." 14 it real time, but it's not, like, sort of a decision
15 Are you with me? All right. 15 made at the edge of a knife, all right? This is a plan
16 So that shows that the engineers understood that 16 that the Government had in place for 80 years which it
17 when this dam is filled by the design storm, the Hearne 17 executed to a T.
18 Storm, which is reasonably expected to occur in the -- 18 And I'll remind the Court, the testimony was that
19 over this watershed, then you are going to fill it up to 19 the dams operated as intended. They were proud of how
20 the -- the reservoir will fill to that contour line. 20 the dams operated. They reported and said, "Look at us,
21 And I'd refer the Court to -- I would refer the 21 we did a good job. We protected downtown Houston." And
22 Court to the Cotton Land Company case, and they're 22 that's fine. We do not take issue with that
23 talking about foreseeability, and this is what the Court 23 governmental decision, but the imposition of that harm
24 had to say about foreseeability: "If engineers had 24 on our Plaintiffs' properties is what deserves
25 studied the question in advance, they would, we suppose, 25 compensation because of the -- because of the
3304 3306
1 have predicted what occurred." 1 appropriation of their land for the benefit of others.
2 These engineers did study in advance and predict 2 That's the fundamental nature behind the Fifth
3 what ultimately did occur. They knew that dam would 3 Amendment.
4 hold this much water, it was built to hold this much 4 The zero-sum game, look, before the Government
5 water, and when the storm that happened -- that they 5 imposed itself on Buffalo Bayou, the water would have
6 knew would happen -- did happen, the intended event of 6 flowed past these properties and gone downstream. It is
7 that happened, whether they wanted to flood people or 7 the one that changed "the game" -- to the extent you can
8 not. 8 call it a game -- and imposed the risk upstream by
9 I think we got -- I think the Court obtained some 9 building the dams. And so the decision to lift the
10 concessions there that there was definitely a benefit to 10 gates or not lift the gates has never been part of our
11 the Government. I'm glad to hear that. We heard the -- 11 case, is not and has not been. We have 25 miles of dam,
12 oh, this notion that the damage was replaceable. Those 12 and the gates are some several hundred feet wide. They
13 are -- okay, I'll start with legally. Legally, those 13 couldn't have lifted the gates and avoid what they did
14 are old takings cases that aren't really what the law is 14 because the dams are so big and because the dams are
15 anymore about if it's replaceable it's not a taking, but 15 designed to hold the water.
16 the notion that the Government can impose storm water on 16 And, again, there's talk -- you know, we saw one
17 a private property in a home that causes the 17 email where they evaluated decisions, but they rejected
18 destruction -- a massive amount of destruction and just 18 those other choices because the Water Control Manual was
19 walk away because it could be repaired, that's not -- 19 in place. Richard Long testified that there was no
20 that's not the law, and it's a good thing that's not the 20 change from the Water Control Manual, and he had never
21 law, because that's an inappropriate position to take, I 21 seen in his 40 years with the Corps a change from the
22 think, frankly. 22 Water Control Manual.
23 Okay, the police power. I would first just point 23 And then this reference to, oh, well, they were
24 out that the Court has dealt with the police power 24 in sort of a soft emergency --
25 argument on -- as a legal basis. Quoting from this 25 Can you put up Joint Exhibit 118, please, page
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1 20? 1 conference -- that we should have evaluated the relative
2 This is a flow chart -- and just show me that 2 benefits of these in terms of flow -- flood control
3 chart, if you would, please. 3 projects, because that's beyond even -- I don't think
4 This flow chart talks about the different stages 4 they've even gone that far, but the facts are the
5 of, you know, readiness and preparedness. The 5 Government themselves, their witnesses have testified
6 Government never got past that stage two extended watch. 6 that there is only one flood control project that
7 The testimony was from Mr. Thomas that stage one -- the 7 affects the -- that is an example of the Government
8 level one emergency was not specifically declared, and 8 trying to affect the flood or not flooding within
9 the level two and level three were not declared. 9 upstream, Buffalo Bayou, and onward.
10 Now, "not specifically declared," I don't know 10 The Buffalo Bayou project is the only project
11 exactly what that means, but the facts and the evidence 11 that affects flooding or not flooding for those people,
12 were that no special steps or no steps were taken 12 and the Government's witnesses said that the outgrants
13 outside of the Water Control Manual. They did not 13 were not -- I repeat, "not" -- part of the project.
14 proceed under the Emergency Action Plan. So this notion 14 That was Johnson-Muic's testimony under oath. She's the
15 of, like, we don't know what to do and we're just caught 15 land person, the person in charge of real estate. Those
16 in a bind here, it's a bind that the Government put 16 are not part of the project.
17 themselves in, and it's not -- and it's a bind that went 17 And everybody said, you have Thomas and you have
18 exactly as the Government planned. Hold the water back, 18 Long both saying that the project was run, and, in fact,
19 protect downstream, and cross your fingers and hope 19 did not confer any upstream flood mitigation benefits.
20 upstream survives, at best. 20 So the notion that these channels should be considered
21 All right, now the outgrants -- well, I guess we 21 as flood mitigation benefits, the facts don't support it
22 will talk about just generally -- sorry, just generally 22 at all. And so our view is that the channelization or
23 causation. There's a couple points here I want to be 23 not doesn't really come into play, into this discussion,
24 real clear on. I'm understanding the Government's 24 because what we're talking about is the federal action.
25 argument to be that the failure -- quote unquote -- as 25 At the most you can say that the Federal
3308 3310
1 it were, to consider the outgrants mean that Dr. Bedient 1 Government was involved was the granting of an easement
2 somehow didn't return the land to a pregovernmental 2 to allow the trenching. The trenching, the digging, the
3 action condition. 3 movement of the dirt that affects the flow of the water
4 THE COURT: If he did that, it was in connection 4 was done by the local governments, not the Federal
5 with riverine flooding. That's what we're talking 5 Government. And so for that reason, I think the whole
6 about. 6 outgrants and channelization argument is -- it's a non
7 MR. CHAREST: Yes, sir, that's exactly right, and 7 sequitur, because we're supposed to be looking at the
8 I guess what we'd say there is, first off, Dr. Nairn 8 federal project.
9 didn't do that either, by the way. Remember, Dr. Nairn 9 And to the extent you're talking about in terms
10 had the fully developed channels coming in to just a 10 of causation, the way the world would have been but for
11 wall. The notion that that's what the but for world 11 the project, if there was no project, these properties
12 would look like is -- it's implausible, okay? 12 would have been developed and the channels would
13 The more likely result of what the but for world 13 continue, and you heard that from Vogler, fundamentally.
14 would look like was that if there was a channel on one 14 People were going to find a way to develop this land,
15 side of government-owned land -- and imagine the 15 and that's what Mr. Vogler said, and there was no
16 Government didn't own it -- that channel probably would 16 benefit for flood mitigation from those channels.
17 continue onward, which is the world as Dr. Bedient saw 17 Now, as to the attempted defense of Dr. Nairn, I
18 it, all right? So the but for world would have channels 18 was absolutely correct when I said that Dr. Nairn said
19 that would drain outside of the neighborhoods, at a 19 that he had a plus or minus one foot error rate on his
20 minimum. So the use of that -- the artificially filling 20 own model. It's in the record at 2685, line 12, until
21 in the channels by Dr. Nairn is unsupported and wrong, 21 2685, line 15, and I'll read the quote:
22 frankly. 22 "QUESTION: In terms of error rate for your
23 But I want to be real clear. I don't think the 23 model, sir, on average, you have plus or minus one foot,
24 Government's arguing -- and I think they waived it or 24 sometimes better, sometimes not as good, correct?
25 said they were not going to bring it during the pretrial 25 "ANSWER: Correct."
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1 That's what he said because that's what he said 1 All right. The last point or the last topic was
2 in his deposition, and this is the one time when his 2 Arkansas Game & Fish. The discussion was about
3 deposition and his trial testimony matched up. 3 duration, and the argument was that, you know, the time
4 That means from the jump, all of Dr. Nairn's 4 the people are out of their home had -- and I am going
5 numbers are plus or minus a foot, okay? And then you 5 to do my best to quote the other side here -- "nothing
6 look at, as applied, how it looks to real world checks, 6 to do with the government action." I would say that's
7 which is what we did, and -- you know, and you can -- we 7 like aside from the -- you know, aside from that,
8 can argue about the gauge, and I'm going to talk about 8 Mr. Lincoln, how was the play?
9 the gauge in a second, but you can't argue about the 9 The water in their homes -- the water destroyed
10 pictures that show there's no flooding when Dr. Nairn 10 their homes, and the notion that -- the fact that their
11 said they had been flooded. I mean, there's just no 11 water -- their home was destroyed had nothing to do with
12 comparison there. 12 the government action I just can't get my head around.
13 And on the point of the gauge, Matt, can you 13 Obviously the disruption of the home has everything to
14 bring up Plaintiffs' 155? 14 do with the government action. It is the result of the
15 We heard the Government talk about how the 15 government action.
16 record -- the evidence in the record was that the gauge 16 The -- I think I got taken to task for using the
17 is malfunctioning and, you know, it had been reported as 17 word "imagine" what will happen when this Texas law
18 being -- I don't know what he said, problematic or 18 gets -- not just enacted, but, you know, people start
19 whatever. Here's what the -- here's the report that was 19 trying to sell their homes, and I guess the Court can
20 taken a month after the storm, okay? So who knows what 20 infer from the existence of that law what will happen.
21 happened in the month prior. The comment -- that's all 21 It's an obvious result. People are going to sell their
22 it was, was a comment -- was that there was vegetation 22 homes, and they are going to have to say, "I'm in a
23 around the pipe, the crest stage gauge. 23 flood zone now," which when they bought it they didn't
24 Importantly, you see the part where it says, 24 know: I'm in an area that can be flooded because of the
25 "Gauge" -- sorry, vent condition is the top, that's the 25 Corps' action." That's absolutely a part of the
3312 3314
1 top of the vent that's open. Intake condition, open. 1 substantiality here.
2 Remember, the way these work is just as long as you have 2 And the last topic is this reasonable
3 flow at the bottom and flow at the top, the water level 3 investment-backed expectation. We heard a list of
4 will match the water level outside. So the report that 4 things that were supposed to put the public at general
5 he's saying shows error I think just says there was 5 on notice. Well, the Court rejected properly the expert
6 vegetation but that both the vent and the intake were 6 testimony, such as it was, of Mr. Galloway. The list of
7 open. 7 things that he thought were relevant the Government just
8 I would have done a better job with this if I had 8 pushed into their brief anyway, and we heard the list
9 even understood that they thought this was a problem and 9 was maps. I think they're talking about quad maps, but
10 didn't learn about it on the stand, but we got them 10 I'm not really sure, so I guess that means everyone has
11 anyway. So there it is. That gauge was working fine. 11 an obligation to go check their quad map to see if
12 Just like every other gauge that disagreed with Nairn, 12 you're living inside a government pool or not.
13 the gauge was right and Nairn was wrong. 13 There was -- the next reference was public
14 THE COURT: Well, the vegetation, if it affected 14 discussions --
15 the intake, would impede the flow to some extent, but it 15 THE COURT: I will just say, when the Court
16 wouldn't affect necessarily the level. 16 bought a property, a rural property, the Court did check
17 MR. CHAREST: Exactly, unless it was, like, 17 the quad map first.
18 watertight and on top and bottom, like you can take a 18 MR. CHAREST: Well, after some years on the
19 straw and lift of the water out of a glass, but that's 19 Bench, I suspect you might, right?
20 not -- I don't think even Dr. Nairn thinks that that was 20 THE COURT: Right.
21 the case. 21 MR. CHAREST: Then he's talking about public
22 THE COURT: All right. 22 meetings. I think the record was, what, 150 people, 180
23 MR. CHAREST: As long as the vent and the intake 23 people, whatever it was attended those meetings.
24 are open, which the record shows that they were, the 24 Discussions between the Corps and the developers,
25 thing was working. 25 I thought that was a doozy, as if the people that are
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1 buying these properties are getting told that by 1 games, but his argument that Hurricane Harvey was un --
2 anybody. 2 was not unprecedented is not evidence. What is is
3 The Fort Bend plats, we talked about that with 3 what's in the trial record, including the testimony of
4 Mr. Long, and I think the Court remembers how the plat 4 Plaintiffs' own expert, Dr. Bedient, who at page 2030
5 language themselves -- the plat language itself isn't 5 was asked:
6 even accurate, because it says you're adjacent to a 6 "QUESTION: Considered over the whole of Harris
7 place that can be subject to inundation, not in a place 7 County, you believe that Hurricane Harvey was likely the
8 that is subject to inundation. So if you're looking at 8 single largest storm in the history of the United
9 a plat that is, you know, what, four feet long, looking 9 States?"
10 at the 17th out of 30 entries on the commentary on the, 10 To which Dr. Bedient testified:
11 you know, the lower left of the plant and that you never 11 "ANSWER: I do."
12 see in a closing anyway, and you pull out your 12 That's part of the trial testimony about the
13 microscope and look at the language, you're still being 13 rarity of the Hurricane Harvey storm.
14 misled. 14 Mr. Charest then talked about replaceable, our
15 That's the quality of information the Government 15 argument that the damages that occurred here were all
16 is relying on. It's not enough, and you absolutely can 16 repairable. He -- as I understood his argument, he said
17 infer, Your Honor, from your experience, both in seeing 17 that, well, those cases that talk about repairable
18 these test case properties and being in the neighborhood 18 damages are old cases and no longer good law. I'm not
19 itself, that is not a place that you would expect to be 19 sure what he's talking about there, but what I'm talking
20 flooded. 20 about is comparing what happened here with the situation
21 That's all I have, sir. 21 that the Supreme Court considered in Arkansas Game &
22 THE COURT: Thank you, Mr. Charest. 22 Fish in 2013, the last time the Supreme Court issued a
23 Mr. Shapiro? 23 decision on this.
24 MR. SHAPIRO: Thank you, Your Honor. 24 In that case, the United States had made the
25 Mr. Charest started talking about the fact that 25 argument that the Commission's property had been subject
3316 3318
1 this was -- the flooding occurred only because of the 1 to flooding in the past and that the damage there was no
2 government action, had nothing at all to do with the 2 different. The Supreme Court -- excuse me, the Federal
3 storm. I'll just say, it seems like an obvious point 3 Circuit disagreed with that and said the following on
4 that but for Hurricane Harvey, no homes would be -- 4 page 1374:
5 would have been impacted in the Harris County area, and 5 "The trial Court found that the change in the
6 all of us would be sitting at home right now, not here 6 flooding pattern effected a wholesale change in the
7 today in front of Your Honor. 7 ability of the management area to support timber
8 Plaintiffs -- Mr. Charest started and sort of 8 harvesting in a wildlife preserve of the sort that the
9 finished on causation, and that's not surprising given 9 Commission had historically maintained."
10 the case that they've presented, but that is not the 10 Further, at page 1375:
11 only defense that we've raised here. Causation is 11 "The Commission's property rights in this case as
12 certainly one of the issues that the Court needs to 12 depriving the Commission of 'the customary use of the
13 grapple with here, but that is -- the fact that they may 13 management area as a forest and wildlife preserve.'"
14 be able to show causation with respect to ten of these 14 So Plaintiffs have consistently quoted part of
15 properties does not mean that the Government is, 15 that quotation, the customary use, but what they fail to
16 therefore, automatically liable. Causation is one of 16 recognize is what the Federal Circuit is talking about
17 many issues that we've raised in our briefing. 17 here is the trial court's decision -- Your Honor's
18 Mr. Charest then quoted the Armstrong decision in 18 decision in that case -- that "the repeated floodings
19 the context of Arkansas Game & Fish, to which we've 19 had deprived the Commission from being able to use the
20 already responded. Mr. Charest then provided some 20 management area as a forest and wildlife preserve."
21 comments about how the downstream properties were saved 21 That's a quote from the Supreme Court decision.
22 by the Government's action. Again, that is a good 22 That is not comparable to the situation here.
23 summary of why the Police Power Doctrine applies here 23 The flooding that occurred certainly had impacts.
24 and precludes recovery. 24 Plaintiffs have pulled them all out, pulled out all the
25 Mr. Charest then accused us of playing some word 25 stops here today, and we've seen the pictures of the
45 (Pages 3315 to 3318)

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Trial
3319 3321
1 damage that occurred to these homes, but the type of 1 infer a fact that is often true after a hurricane
2 damage that occurred in Arkansas Game & Fish, where 2 strikes, which is that very often the real estate market
3 there was a wholesale change in the way that property 3 bounces back, and people move on with their lives,
4 could be used, just does not exist here, and the Court 4 forgetting about the possibility of -- that their homes
5 saw that for itself when it saw that the damages that 5 might flood in the future. That, Your Honor, is why
6 occurred have all been repaired or are capable of being 6 subjective knowledge of flooding in the future is the
7 repaired. So this is a very different situation. 7 improper standard.
8 Mr. Charest then referred to Joint Exhibit 5. I 8 And I'll close with that, that the law is very
9 think he was pointing to paragraph -- excuse me, PDF 9 clear that reasonable investment-backed expectations
10 page 19 and 20, pointing to language about the -- within 10 does not depend on a subjective standard. It depends on
11 the Definite Project Report, which he thought supported 11 an objective standard. And the record, again, is
12 his position, but what he was actually quoting was 12 replete, as we discussed in our post-trial brief about
13 related to the White Oak Reservoir, not the Addicks and 13 the outreach efforts and the public documents that were
14 Barker Reservoir, and if the Court looks at that same 14 in the public sphere when each of these Plaintiffs
15 document, JX 5 at paragraph 54, which is PDF 29, that's 15 bought these properties, that upstream flooding was
16 the language that refers to the Addicks and Barker 16 possible.
17 Reservoir, and it says that acquisition of -- up to the 17 So with that, Your Honor, we would again request
18 1935 storm, plus three feet, was advisable. 18 that the Court reject Plaintiffs' claims and enter
19 Mr. Charest then turned back to the emergency 19 judgment in favor of the United States.
20 question, and I have just two responses to that, 20 THE COURT: All right. Thank you, Mr. Shapiro.
21 quickly. First of all, that is not a requirement in 21 Throughout this case, the Court has been
22 order to apply the police power or any other doctrine; 22 impressed with the ability and perspicacity, if I can
23 and secondly, Plaintiffs seem to be hung up on the fact 23 use that word, of counsel in anticipating a set of
24 that only one emergency declaration was made by Colonel 24 issues and developing them, not only in the briefing
25 Zetterstrom. The fact is that Colonel Zetterstrom did 25 pretrial but in the trial preparation and actual conduct
3320 3322
1 issue an emergency declaration, and the Corps did, in 1 of the trial and in the post-trial briefing.
2 fact, follow level one and level two emergency 2 I hope never again to see briefs in a range of
3 procedures as set forth in the Emergency Action Plan. 3 the length of these. I hope it's a one-time event. My
4 There was testimony at trial on why that was, and 4 eyesight will just not stand for anything more than
5 Mr. Thomas explained that no further emergency 5 this, but I do thank counsel for the extensive and
6 declaration was needed, and that's in the trial record. 6 capable presentation of the case. With that, the case
7 Mr. Charest then turned to the error rate issue 7 is submitted. Thank you very much.
8 and claimed that what he said about a one-foot error in 8 (Whereupon, at 3:01 p.m., the proceedings were
9 Dr. Nairn's report was accurate. We talked about this 9 concluded.)
10 issue in our post-trial brief at page 68 and 69, and 10
11 what we say there is that Dr. Nairn's model does 11
12 overpredict in one area, for one of the runs, a one-foot 12
13 error, but Plaintiffs' assumption that that one-foot 13
14 error, therefore, propagates through all of the other 14
15 hypotheticals is just simply an error, and we talk about 15
16 this at page 69, where Dr. Nairn testified that his 16
17 model prediction in the no-project run, at that -- the 17
18 area being discussed and the point in time was within 18
19 0.36 feet. And that's page 2769 to 2770 in the trial 19
20 record. 20
21 And then, finally, Mr. Charest returned to his 21
22 word, "imagine" what the loss in property value might be 22
23 as a result of this Texas statute which wasn't part of 23
24 the trial record. He said, well, if you don't imagine, 24
25 maybe infer. Well, I mean, we can ask the Court to 25
46 (Pages 3319 to 3322)

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1 CERTIFICATE OF TRANSCRIBER
2
3
4 I, Susanne Bergling, court-approved transcriber,
5 certify that the foregoing is a correct transcription
6 from the official digital sound recording of the
7 proceedings in the above-titled matter.
8
9
10
11 DATED: 09/18/2019 s/Susanne Bergling
12 SUSANNE BERGLING, RMR-CRR-CLR
13
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[3324]
A acquire 3150:15 3264:8 3271:22 3298:23 3188:13,14 3189:6

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3205:10,11,21

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Boles 3143:14 3234:24 3252:21 3166:21,22 California 3141:23 3270:22 3277:2,9
3145:18 3268:23 3283:8,18 3171:10,23 3210:8 3221:18 3277:13,23
bombs 3221:22 3286:3 3291:1 3175:15 3179:10 call 3152:23 3278:13 3281:6
book 3159:24 3293:1,16 3296:12 3235:10 3240:8 3165:12 3169:22 3288:6 3290:24
3160:6,6 3316:17 3321:24 3243:15 3247:12 3177:2 3203:4 3292:12,25
borne 3277:5 3322:1 3250:16 3251:13 3291:2 3295:11 3295:23 3297:11
3298:2 briefly 3239:19 3273:2 3282:5 3306:8 3298:13 3302:20
borrowed 3220:6 3257:9 3289:12 3301:23 called 3189:13 3303:22 3306:11
bottom 3156:22 briefs 3146:17 3304:4 3197:17 3226:4 3312:21 3315:18
3157:20 3182:13 3322:2 bulldozed 3168:24 3227:2 3239:23 3316:10 3317:24
3183:13 3194:16 bring 3196:10 bulwarks 3153:23 3255:20 3268:12 3318:11,18
3214:4 3312:3,18 3203:15 3207:7 bump 3201:9 3295:22 3321:21 3322:6,6
bought 3210:8,25 3308:25 3311:14 bunch 3172:11 calling 3295:14 case-specific 3209:7
3223:1 3225:25 brings 3243:10 3300:5 3303:7 cases 3166:15
3235:19 3236:7 broken 3221:4 burden 3146:13 camp 3211:25 3246:21 3259:11
3243:22 3252:6 brought 3231:13 3209:14 3278:17 Canyon 3218:7 3260:11 3264:6
3289:17 3313:23 3232:16 3253:13 3282:2 3295:8 3219:1,1 3268:2 3270:15
3314:16 3321:15 3266:9 3283:19 burdened 3282:3 capable 3166:17 3272:22 3281:3
bounces 3321:3 Bryant 3260:21 burdens 3277:4 3178:9 3249:5 3304:14 3317:17
bouncing 3197:14 budgetary 3164:3 3298:1 3319:6 3322:6 3317:18
bound 3273:11 Buffalo 3149:1,17 Burnham 3181:20 capacity 3165:3 catastrophic
boundaries 3162:13 3159:1,4 3163:11 3197:4,4 3199:4,6 card 3252:17 3220:25 3222:17
3254:8 3163:22 3181:23 3199:12 3200:22 care 3166:25 3228:1 catching 3212:16
boundary 3236:13 3181:24 3182:1,4 3201:6 3202:2 3228:4,5,9 categorical 3298:15
3236:14 3248:11 3182:5,13 3193:15 3209:20 3220:3 carefully 3288:5 caterer's 3215:21
3248:13 3193:17,21 3194:1 3221:9,14 3282:11 carpets 3217:13 Catherine 3216:18
BOUNDAS 3141:3 3239:24 3285:4,10 3282:14,16,19 carried 3192:19 caught 3307:15
Box 3142:17 3297:13 3306:5 Burnham's 3198:6 carry 3163:21 causation 3180:5,14
boxes 3173:12 3309:9,10 3202:5 3220:23 3175:11 3183:4 3180:15 3230:3
brain 3169:23 buffer 3236:5 BURNS 3140:5 carrying 3163:13 3242:17 3258:8,10
break 3228:22,24 build 3151:21,23 bus 3214:6 case 3145:6,8 3281:1,2 3282:2
3229:11 3267:7,19 3152:20 3159:11 button 3280:14 3146:12 3147:7 3307:23 3310:10
3279:10 3164:18 3168:10 buy 3151:24 3172:7 3148:4,5,21 3316:9,11,14,16
brief 3175:19 3170:8 3204:23,24 3174:16 3177:7 3149:22 3153:10 cause 3181:16
3229:15 3234:4 3237:8 3247:23 3211:10 3301:25 3153:18,18 3182:22 3201:13
3239:6 3242:25 3248:8,20 3249:6 3302:10 3164:16 3169:12 3209:18,20,24
3244:15 3248:19 3301:8 buyers 3218:1 3169:19 3172:21 caused 3178:11
3249:12 3253:15 building 3139:10 buying 3176:15 3172:23 3181:7 3201:22 3210:17
3253:20 3255:1 3151:3 3152:15 3315:1 3201:4 3210:1 3216:6 3227:6
3259:14 3261:11 3155:18 3185:9 bypass 3287:17 3227:6 3230:11 3257:4 3266:7
3261:15 3273:14 3225:12 3297:15 3231:11 3232:14 causes 3181:15
3279:6 3283:15 3306:9 C 3232:16 3236:21 3259:24 3304:17
C 3145:1

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3328]
ceiling 3209:2 3230:5 3240:7 3196:9 3198:9,17 checks 3311:6 3284:15 3285:15
central 3148:20 3281:15 3286:12 3199:1,8,15 cherry-picked 3320:8
certain 3243:19 3308:10,18,21 3200:15 3202:13 3192:13 claims 3139:1
3276:5 3289:15 3309:20 3310:12 3209:8,21 3217:24 chest-deep 3218:25 3229:14,22,23
3292:8 3310:16 3222:9 3225:9 children 3216:19 3233:6,8 3260:16
certainly 3156:8 character 3172:25 3228:16 3229:1,2 3218:18 3219:20 3260:22 3267:1
3194:23 3203:5 3204:18 3221:2,24 3229:19 3230:4,18 choice 3275:1 3268:12 3279:7
3232:17 3233:19 3232:11 3258:24 3231:2 3236:18 choices 3306:18 3285:4 3287:23,23
3233:24 3234:7 3268:17 3289:9,16 3238:22 3244:19 chose 3194:20 3295:10 3296:13
3236:20 3247:12 3289:23 3245:5,12 3249:12 3211:1 3220:7 3321:18
3250:3,3 3251:10 characteristic 3249:19 3253:12 3221:19 clarify 3163:20
3253:1 3256:18 3235:17 3236:4,9 3254:14 3258:2 chosen 3221:18 3184:9
3270:2,3 3271:20 3236:17 3237:1 3261:12 3267:13 Christian 3196:11 class 3275:3
3293:25 3316:12 3244:2,12 3245:9 3267:14 3269:18 3218:19 3219:21 Claudette 3158:6
3318:23 3245:25 3247:21 3269:25 3273:12 Christina 3225:24 3169:14 3178:18
CERTIFICATE 3247:24 3275:7 3278:25 3228:3 3251:2 3300:5
3323:1 characteristics 3279:16,17 3280:8 Chronicle 3294:21 clause 3277:3
certify 3323:5 3256:21 3283:19,21 3284:7 church 3211:16 3297:23
change 3147:20 characterization 3284:10 3285:3,15 churches 3174:8 clean 3219:14
3149:24 3154:4,15 3220:17 3295:25 3290:21 3291:1,22 Cinco 3211:2 clear 3176:9
3192:11 3236:10 characterized 3292:1,16 3293:9 3221:25 3186:24 3189:13
3239:2 3243:18 3229:22 3231:12 3293:24 3296:17 circle 3199:9 3204:16 3210:3
3245:4 3246:3 3268:9,22 3296:18 3299:1,6 circled 3167:19 3246:7,21 3248:19
3248:7 3250:18 characterizes 3299:14 3300:22 Circuit 3231:9 3249:10,23 3252:3
3251:11 3255:8 3231:25 3300:24 3301:2 3242:16 3318:3,16 3252:5 3257:12
3256:14,15 Charest 3140:5,6 3302:14,16 3308:7 Circuit's 3246:20 3265:24 3276:18
3306:20,21 3318:5 3144:4 3145:9,12 3312:17,23 circumstance 3278:10 3284:17
3318:6 3319:3 3145:12,17 3314:18,21 3259:3 3272:20 3286:21 3307:24
changed 3221:3 3146:13,14,22,23 3315:22,25 3316:8 circumstances 3308:23 3321:9
3245:3,9,16,17 3147:8,11,13,25 3316:18,20,25 3268:18 3269:22 clearer 3203:22
3251:5,9,11 3148:17,18 3317:14 3319:8,19 3288:4,6 clearly 3251:25
3256:20 3283:3 3150:21 3151:2,12 3320:7,21 citation 3207:17 3280:5
3306:7 3151:15 3152:11 Charest's 3234:13 cite 3259:12,13 CLERK 3280:18
changes 3247:15 3153:9 3154:12,18 3239:7 3246:8,14 3260:8 3279:5 Cleveland 3215:7
3255:8 3154:21 3155:16 3292:22 3290:23 climatic 3251:4
channel 3149:5 3156:9,19 3157:13 charge 3194:19 citizens 3178:8 climatological
3163:21,23 3182:6 3161:12 3162:8 3309:15 City 3149:4 3169:18
3189:1 3198:4,5 3163:2 3164:1 Charles 3139:17 Cl 3268:14 close 3169:13
3198:23 3287:17 3167:14 3169:20 3140:17 3145:13 claim 3203:15 3179:6 3200:10
3297:13 3308:14 3170:19,22 3171:1 charles@irvineco... 3231:14,25 3232:3 3201:10 3224:8
3308:16 3172:10 3173:3,6 3140:21 3233:5 3243:11 3295:16 3300:6,21
channelization 3175:12,16 chart 3171:3 3246:22 3251:15 3321:8
3198:12 3309:22 3179:25 3180:9,12 3183:14 3185:14 3252:19 3259:8 closed 3202:1
3310:6 3182:3,9,12,16 3201:9 3307:2,3,4 3263:22,22 3266:6 3268:24
channels 3161:18 3184:13,16 3186:9 chase 3158:19 3266:9,11,16 closing 3144:3
3193:2 3197:23 3188:9 3189:2,5,9 check 3181:14 3273:1 3279:8 3146:11 3147:9
3200:6,8,17,24 3189:12 3190:6,9 3207:23 3280:16 3288:11 3295:4 3153:20 3228:17
3201:4 3202:1 3192:2 3195:7 3314:11,16 claimed 3266:10 3239:7 3244:20

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3329]
3245:13 3265:12 3318:19 conceded 3180:25 conduits 3236:20 considers 3248:10

3282:13 3283:19 Commission's 3188:6 3244:8 3249:7 3281:14
3284:8 3292:17 3288:17 3317:25 conceivable 3166:6 confer 3309:19 consistent 3235:6
3315:12 3318:11 3166:11 conference 3309:1 3251:8 3287:18
closings 3147:1 communities concept 3148:24 conferring 3198:25 3305:7
clubhouse 3215:13 3174:10 3150:7 3152:25 confirmed 3149:7 consistently 3171:25
3215:19,19 3216:4 community 3212:8 3155:17 3160:13 3186:10 3190:10 3262:1 3318:14
Coast 3302:8 3215:10,12 3216:3 3161:7 3164:18 3190:17 3202:3 constitute 3260:13
code 3183:13 3218:10 3226:6 3166:3 3172:14 confirming 3190:23 3261:3,4
3192:11 3207:18 3269:13 3270:8 3179:14 conflating 3251:21 constitutes 3268:15
colleague 3145:18 companies 3216:8 conceptually 3156:8 conflict 3194:12 constitutional
colleagues 3145:10 3216:10 3158:14,15 3257:20 3259:6 3268:8
3145:22 Company 3261:1,4 3242:18 conflicting 3155:2 3275:2
Colonel 3275:20 3303:22 concern 3197:7 3257:7 constraints 3149:18
3276:11 3319:24 comparable concerned 3199:11 conflicts 3241:20 3270:7
3319:25 3262:11 3318:22 3216:11 3221:20 3242:10 construct 3156:14
color 3183:12 compare 3281:4 concessions 3304:10 confused 3217:11 3240:2
combination compared 3238:24 conclude 3196:24 Congress 3149:25 constructed 3178:24
3199:21 3248:24 3240:4 3202:7 3233:10 3240:1 3275:13 3240:5 3243:21
come 3158:16 comparing 3317:20 3259:9 congressional 3244:8 3253:20
3169:8 3184:7 comparison 3300:10 concluded 3179:24 3148:25 3149:24 3254:9 3261:21
3185:5,14,14 3311:12 3183:17 3187:19 3150:5 3263:17 3281:8
3186:3 3189:21 compelling 3291:9 3190:1 3206:13 congruent 3233:18 3296:3
3194:8 3197:11 compensable 3268:4 3214:23 3223:13 3233:20,22 construction
3198:23 3247:6 3270:17 3288:4 3322:9 connected 3167:19 3160:15 3161:15
3279:12 3300:5 compensate 3298:16 concludes 3232:15 connection 3161:14 3165:22 3171:6
3309:23 compensated 3232:20 3225:14 3308:4 3179:2 3234:21
comes 3159:18 3203:14 conclusion 3158:20 CONNER 3140:16 3243:8,11,24,25
3164:19 3168:11 compensation 3158:24 3178:15 consequence 3244:21,25
3182:4 3186:24,25 3298:12 3305:25 3262:6 3283:10 3159:15,16 3245:11 3287:16
3200:10 complain 3246:15 conclusions 3201:16 3164:13 3289:13
coming 3185:8 3263:16 3201:17 3291:14 consequential contaminated
3189:19 3192:24 complaining 3243:8 Concord 3142:8 3265:20 3211:20 3219:11
3193:21 3194:5 complaint 3243:6,7 concrete 3255:20 consider 3204:4 contentions 3232:24
3195:10 3197:11 3264:15 3265:18 3256:4,6,9,12,14 3252:24 3273:23 contest 3164:7
3199:2,22 3201:25 complete 3276:25 condemned 3164:21 3274:19 3281:25 context 3249:17
3308:10 3290:9 condition 3186:12 3289:25 3308:1 3316:19
commend 3148:7 completed 3161:20 3210:16 3212:2 consideration continue 3280:10
comment 3311:21 3223:21 3243:23 3222:22 3263:17 3162:14 3184:6 3308:17 3310:13
3311:22 3243:24 3265:17 3308:3 3274:16 3293:4 CONTINUED
commentary completely 3168:2 3311:25 3312:1 3305:13 3141:1 3142:1
3315:10 3169:20 3211:23 conditions 3251:4 considerations 3143:1
comments 3236:18 3225:13 3233:18 3270:7 3289:21 3249:1 continues 3222:24
3246:8,15 3275:8 complex 3168:18 condo 3210:18 considered 3157:22 contour 3155:23
3277:24 3289:4 3216:4 condominiums 3159:2 3236:8,25 3156:3 3159:19
3316:21 component 3170:15 3210:8 3244:2 3246:17 3165:17 3303:20
Commission 3230:8 concede 3255:1 conduct 3321:25 3247:21 3303:8 contours 3195:17
3231:15 3318:9,12 3258:8 conducted 3284:13 3309:20 3317:6,21 contractors 3210:19

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3330]
contradiction 3158:3,11 3159:4 3191:1 3222:8 3226:20 3190:4,5,7,8

3249:22 3251:14 3159:25 3161:5 correct 3147:4,21 3238:2,3,5,6 3191:25 3196:9,22
3252:3 3162:17,22 3153:8 3154:17 3242:3 3250:11 3196:24 3198:7,14
contradictory 3170:10,17,23,24 3156:19 3157:12 3260:3 3261:1 3199:6,11,11,16
3249:14,21 3171:4,9 3177:6 3157:13 3160:19 3278:22 3294:13 3200:14 3201:14
contradicts 3272:7 3178:3,21 3179:9 3162:9,20 3163:2 3294:14,18 3316:5 3202:6,11,12,19
contrary 3234:17 3179:13 3187:10 3188:8 3192:2,2 3317:7 3204:20 3205:12
3238:8 3272:3 3187:11 3199:23 3194:2,6,13,14 County's 3278:19 3206:4 3207:16
3273:22 3207:14 3208:7,10 3195:12 3198:8 couple 3147:3 3209:4,8,12
contrast 3157:23 3222:4 3225:1 3199:15 3243:17 3161:11 3169:13 3212:6,7 3213:3
3183:24 3190:25 3234:4,10,12,15 3250:3 3255:10,12 3169:17 3171:7 3216:1,19 3220:2
control 3145:8 3234:25 3235:10 3255:14 3270:2 3242:25 3243:3,15 3220:10,16
3149:9,11 3157:12 3235:19,23 3236:1 3271:7,20 3284:5 3249:13 3283:18 3221:15 3225:20
3157:14,19 3159:3 3236:6,22 3237:4 3284:21 3285:2,13 3307:23 3225:22 3228:13
3159:23 3238:3 3237:13,16 3292:15 3299:6,7 course 3159:6 3228:18,20,21
3239:23 3264:18 3238:10 3239:1,16 3310:18,24,25 3180:19 3182:13 3229:4,6,8,9,13,14
3266:7 3272:3,10 3240:2,16,19 3323:5 3196:17 3237:18 3231:3,4,7,25
3272:24 3273:2,10 3241:6,16,18,23 correcting 3190:4,8 3279:17 3232:2,4,4,15,17
3286:13 3288:19 3243:21,21,22,25 correction 3195:14 courses 3181:23 3232:19,23 3233:3
3294:14,19 3244:7,9,15,22 3285:14,19 court 3139:1 3145:3 3233:7,7,9,13,13
3306:18,20,22 3245:6,21 3246:16 correctly 3156:17 3145:6,6,20 3233:14,22,25
3307:13 3309:2,6 3247:19,19,22 3162:17 3268:22 3146:3,10,14,16 3234:18 3235:15
controlled 3208:6 3248:7,20 3249:3 3282:13 3287:6 3146:16,24 3147:2 3236:5 3237:6
3289:14 3249:6,7 3250:16 3300:20 3147:2,6,10,12,12 3238:21 3241:7
convenient 3267:10 3251:13 3253:17 corresponding 3147:23 3148:7,8 3242:17 3243:13
convergence 3253:22 3254:2,3 3298:10 3148:9,14 3149:10 3243:19,21
3198:11 3254:3,6,12 corridor 3204:6 3150:20,22,23 3246:24 3247:2,8
converted 3161:21 3256:6 3258:4 3239:23 3241:2 3151:10,14 3152:2 3247:10,19,24
convey 3183:23 3261:21 3263:19 cost-benefit 3302:3 3152:10 3153:1 3248:5,15,23
conveyance 3176:4 3268:21 3269:10 Cotton 3303:22 3154:11,13,20 3249:1,24 3250:6
3183:19,21 3186:4 3271:9,13,25 counsel 3143:4 3155:15 3156:6,16 3250:12,20,23
conveyed 3183:6 3272:2,9,12,20 3145:5,10,22 3156:16 3157:10 3251:2 3252:12,13
3184:25 3185:4,10 3273:5,7,11,18,23 3146:8 3198:25 3161:8,24 3162:24 3252:14,24 3253:5
3190:19 3274:5,12,13,17 3235:8 3277:12 3163:20 3167:11 3253:9,16 3255:7
convince 3201:14 3274:19 3275:14 3280:5 3282:13 3169:10 3170:16 3255:13,15,18,22
cooking 3211:25 3275:23 3276:5,16 3289:4 3321:23 3170:20,24 3172:4 3255:24 3256:17
Coordination 3277:19 3278:3,8 3322:5 3172:22 3173:5,10 3256:20 3257:2,6
3276:17 3278:23 3281:11 counter 3207:5 3173:22 3175:9,10 3257:10,13,17,23
copied 3274:3 3281:15 3282:5 3298:21 3175:13 3176:13 3258:1,8,13,21,23
core 3148:20 3286:7,19 3296:5 counter-attacks 3176:22 3177:1 3259:9 3260:16,20
cork 3194:16 3301:4 3306:21 3165:9 3178:2 3180:3,6 3260:21,22 3261:1
corner 3155:4 3314:24 3320:1 counterfactually 3180:10,19,23 3262:5 3265:22,23
Corporation's Corps' 3161:2 3201:5 3181:21 3182:1,7 3266:11,11,16,24
3224:22 3178:22,23 3180:1 counterweight 3182:11,15,17 3267:3,9,17,20
Corps 3143:3 3267:24 3269:20 3302:17 3183:2,3 3184:8 3268:9,12 3269:9
3146:7 3148:25 3278:25 3288:18 country 3192:17 3184:14 3186:8,14 3269:19 3270:3,11
3149:23 3150:2,13 3294:10 3313:25 County 3157:12,14 3188:7,7,25 3270:20 3271:15
3154:8 3157:20 Corps-developed 3157:19 3213:12 3189:3,4,8,11 3271:19 3275:1

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3331]
3276:8,10 3277:2 created 3235:21 D.C 3139:12 3153:3,5,6 3220:14,23

3277:16,22 3278:2 3245:8 3254:24 3142:18 3160:16 3161:9,16 3222:14 3251:3
3278:6,12 3279:5 3272:17 Dallas 3140:11 3161:21,23 3282:15 3283:3
3279:10,11,16,18 credit 3269:10 3218:19 3162:13 3163:13 day-one 3156:1
3280:3,9,13,16,19 creek 3162:1,3,9,10 dam 3148:23,24 3163:13,16,18,21 3244:22
3280:23 3281:3 3162:16 3163:6 3150:8,10,13 3165:20 3166:8 days 3205:2 3210:14
3286:2 3287:22 3182:8,9 3189:3,5 3151:3,4,6,7,10,15 3171:10,23 3175:3 3211:15 3213:5
3288:4,8,13,14,21 3189:6,18 3190:16 3151:16,21 3178:24 3187:23 3214:11,12,15,15
3288:22,22 3190:17,21,21 3152:20 3153:12 3201:22 3202:9 3217:23 3219:16
3289:24 3291:6,6 3193:24 3197:6,11 3154:17 3155:7,11 3203:2 3204:15 3221:1 3225:16
3291:16,20,20 3197:12 3198:5,7 3155:14,19,22,25 3210:6 3239:21 3264:4,9 3265:8
3292:2,11,11 3198:10,12,18,18 3156:4 3159:17 3248:20 3250:17 dcharest@burnsc...
3293:4,16 3295:10 3199:25 3201:17 3160:23 3161:5,7 3254:12 3255:10 3140:13
3295:14,21 3201:20 3220:14 3161:15 3162:18 3255:11 3261:24 dead 3215:2
3296:10,15,17 3220:19 3223:3 3163:10 3164:2,19 3268:24 3270:5 deal 3183:22,22
3298:24 3299:2,13 3225:7,8 3165:2,16,17,23 3271:15 3296:22 3206:5 3213:17
3300:20,20,23 Cress 3259:13 3165:24 3166:22 3296:23 3297:1,6 3285:9 3291:4,12
3301:1 3302:12,15 3260:20 3166:22 3167:5 3297:12,16 3301:24
3303:21,22,23 crest 3285:11 3168:10 3170:8 3301:17 3305:4,19 dealing 3216:5
3304:9,24 3305:8 3311:23 3187:2 3200:16,17 3305:20 3306:9,14 3232:23 3233:1
3305:18 3308:4 criteria 3151:11 3200:21 3237:8 3306:14 dealt 3288:11
3312:14,22 3158:21 3209:7 3253:23,25 3254:4 dams' 3297:2 3304:24
3313:19 3314:5,15 3274:21 3255:21 3256:24 danger 3172:16 debris 3213:4
3314:15,16,20 critical 3177:25 3257:1 3261:20,21 dangerous 3272:18 decades 3169:17
3315:4,22 3316:12 critically 3244:6 3261:25 3262:6 Daniel 3140:6 3236:10 3289:13
3317:21,22 3318:2 cross 3235:8 3275:21 3276:20 3145:12 3294:8 3296:4
3318:5,21 3319:4 3307:19 3281:10 3301:8,10 dark 3300:25,25 decades-long
3319:14 3320:25 cross-country 3301:23 3303:17 data 3177:16 3188:4 3246:11
3321:18,20,21 3240:7 3304:3 3306:11 3191:1 3192:6,18 December 3220:4
court's 3166:24 Cruz 3142:14 damage 3203:25 3192:19 3242:10 decide 3150:18
3173:16 3176:6 3146:4,5 3204:4,5 3205:24 3284:15,20,21 3273:24
3180:14 3207:11 cubic 3152:18 3206:7 3219:16,19 3285:1,5,6 decided 3171:16
3230:19 3247:6,17 3220:19 3220:25 3222:17 3291:10 3293:20 3246:20 3302:9
3250:16 3277:24 cul-de-sac 3212:8 3224:1,19 3264:7 date 3192:5 deciding 3152:17
3305:1 3318:17 3220:8 3265:9,10 3269:12 DATED 3323:11 3275:3
court-approved curb 3186:3 3213:4 3270:5 3282:9 dates 3247:1 decimal 3191:9
3323:4 3217:6 3296:5,25 3297:22 daughter 3212:9 decision 3151:13,19
courtroom 3139:9 cushion 3214:19 3298:4 3304:12 3226:2,22 3227:25 3152:6 3154:4,8
3148:11,15 3207:6 customary 3205:4 3318:1 3319:1,2 3228:4,6,9 3160:21 3164:14
courts 3139:10 3210:3 3219:17 damaged 3216:2 daughter-in- 3170:10 3237:8
3215:12 3216:1 3318:12,15 3265:13 3279:3 3224:14 3246:20 3247:7
3268:13 cut 3158:19 damages 3203:21 Dawn 3143:15 3248:20 3272:3
cover 3190:12 cutting 3150:1 3204:3,9 3267:25 3146:4 3281:18 3273:8,16 3274:25
3302:11 Cypress 3162:1,3,9 3292:12 3303:13 day 3148:3 3152:22 3275:10,11 3291:7
covered 3215:25 3162:10,16 3163:6 3317:15,18 3319:5 3169:14 3188:2 3295:22 3297:14
3219:8 3227:2 damaging 3149:16 3199:14,16,17,21 3297:19 3298:3,7
3275:21 D damn 3160:25 3214:2 3217:8 3298:8 3301:25
cramped 3148:16 D 3142:15 3144:1 dams 3149:1,6 3218:23 3220:10 3305:14,23 3306:9
3145:1

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3332]
3316:18 3317:23 deluge 3295:23 3203:12 3237:11 develop 3310:14 3256:13 3310:3
3318:17,18,21 demolished 3212:25 3237:12,17 developed 3163:11 dirty 3208:22
decision-makers 3215:22 3240:21 3241:9,16 3178:3 3276:7 disabled 3213:14
3240:14 demonstrate 3243:14 3244:20 3299:2 3308:10 disagree 3244:23
decision-making 3263:23 3247:11 3248:17 3310:12 3266:23
3273:1,13 demonstrated 3248:22 3301:18 developers 3281:12 disagreed 3312:12
decisions 3273:3 3209:23 3285:18 3303:6,17 3305:4 3294:11 3314:24 3318:3
3275:13 3290:14 3294:15 designated 3208:11 developing 3321:24 disagrees 3233:13
3290:15 3306:17 demonstrates designed 3150:9,13 development 3178:9 disclose 3207:13
declaration 3241:5 3249:4 3155:8,23 3156:1 3287:1 3303:9,10 3217:25 3218:3
3242:5 3319:24 Department 3159:12,17,18 deviations 3288:18 disclosure 3207:19
3320:1,6 3141:18 3142:3,11 3161:16 3163:17 dialogue 3196:8 3207:22 3208:18
declared 3276:12,14 3145:25 3146:1 3165:17 3168:10 died 3214:3 3225:3 3292:23
3307:8,9,10 3275:11 3175:11 3179:18 Diehl 3207:6,9 disclosures 3207:25
decreasing 3272:14 depend 3153:11 3179:20 3183:3 difference 3162:19 3292:9
deed-restricted 3254:17 3321:10 3186:4 3231:11 3169:11 3180:7 discretion 3150:3
3212:8 3218:10 depends 3156:7 3240:5 3243:14 3186:14 3195:11 3273:19
3226:5 3290:10,14 3294:3 3270:6 3277:3 3231:5,7 3242:16 discretionary
Defendant 3141:17 3321:10 3297:23 3306:15 different 3152:12 3273:12,16
3143:15 3166:7 depicted 3224:11 designing 3159:3 3157:2 3158:21,21 discuss 3219:24
Defendant's deposition 3186:17 designs 3208:8 3167:12,22 3171:7 3229:25 3248:18
3166:11 3238:6 3311:2,3 despite 3234:13,23 3172:11 3173:2 3288:25
3281:18 depositions 3186:2 3239:6 3259:7 3175:24 3182:19 discussed 3209:22
defense 3172:17 depreciation 3206:9 3271:21 3214:7 3220:22 3241:4 3248:2
3176:19 3310:17 deprived 3205:3 destroy 3270:16 3230:24 3232:8,13 3266:4 3274:10
3316:11 3210:3,24 3219:17 destroyed 3205:4 3237:5 3239:22 3279:6 3283:15
defer 3147:2,6 3318:19 3224:5,17 3313:9 3240:1,3,6 3290:25 3293:4
defines 3208:3 depriving 3318:12 3313:11 3249:16 3250:1,2 3294:17,19,20,22
Definite 3149:3 depth 3197:25 destruction 3268:3 3250:4,5,5 3252:2 3320:18 3321:12
3152:3 3170:6 3225:11 3240:22 3275:3 3304:18,18 3253:17 3259:15 discusses 3295:12
3235:14 3244:4 derive 3291:4 detail 3182:17 3261:20 3283:5 discussing 3274:5
3302:5 3303:3 describe 3263:3 3286:10 3284:21,22 discussion 3179:7
3319:11 3276:4 3282:12 detailed 3201:15 3299:13,14 3307:4 3188:13 3202:10
definitely 3153:9 described 3167:18 details 3157:6 3318:2 3319:7 3204:13 3225:3
3172:10 3304:10 3213:10 3219:5 3177:16 3292:25 differentiate 3230:18 3235:7
definition 3269:5,6 3221:5 detain 3154:6 3198:16 3253:11 3276:25
3270:12 describes 3263:5 3301:9 differently 3233:10 3294:10 3296:19
definitively 3240:16 description 3292:22 detained 3187:2 digging 3310:2 3309:23 3313:2
deflect 3154:5 3305:11 3204:25 digital 3323:6 discussions 3225:1
defy 3174:11 3196:1 deserves 3305:24 detention 3169:3 diminution 3218:5 3274:10 3294:8
degree 3191:9 design 3149:21 determine 3158:23 dire 3191:11 3314:14,24
dehumidifiers 3150:7,14,22 3177:17 3258:21 direct 3168:6 dismiss 3266:11
3219:13 3151:3,15,16,16 3268:15 3220:16 3230:14 3305:1
delay 3208:11 3151:25 3152:23 determined 3158:22 3242:14 3258:6 displacement
3229:11 3155:21 3156:25 3170:12 3182:21 directives 3275:14 3223:23
delayed 3228:24 3157:8,20 3160:9 3192:5 3271:25 directly 3291:24 displayed 3212:18
3264:21 3161:4 3164:18 determining 3298:5 3213:25 3218:22
deleted 3243:16 3165:23 3179:14 3292:18 dirt 3219:8 3256:11 3221:12 3222:16

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3333]
disposition 3147:6 3287:6,19 3321:13 3201:25 3202:3 3227:10 3206:17 3207:2

dispute 3181:19 dog 3226:23 3207:5 3209:22 due 3181:1,9 3208:19,24,24
3209:17,19,25 dogs 3214:3,3 3238:9,20 3241:21 3210:16 3248:8 3260:25 3278:25
3287:25 3290:1 doing 3148:19 3241:23 3251:8,12 dug 3256:6,8 effected 3318:6
3297:9 3158:11 3193:13 3260:5 3271:5,6 Duncan 3142:13 effective 3153:4
disputed 3285:6 3201:19 3271:21 3272:9 3146:6 3203:12 3207:12
3295:17 dollars 3269:24 3282:4,24 3283:2 duration 3205:8,22 effectively 3152:21
disruption 3313:13 door 3213:24 3283:2,10,15,16 3265:5 3288:3 3155:19 3161:17
distinction 3230:10 3218:21 3222:13 3283:22,24 3284:3 3289:24 3290:2,18 3164:20 3166:5
3232:6 3233:15 doors 3210:21 3284:5,11 3285:1 3290:21 3313:3 3168:3 3175:2
3268:7 doozy 3314:25 3285:4,21,24,25 duty 3213:14 3193:3 3197:13
distinctly 3180:18 dot 3197:20 3198:21 3293:17 3308:1,8 3298:15 3199:1 3277:25
distinguish 3231:11 3199:8,10 3308:9,17,21 DX 3236:12 3278:20 3282:9
distinguishing dots 3167:19 3310:17,18 3311:4 3287:10,12,12,15 effects 3168:8
3231:23 3204:15 3311:10 3312:20 effort 3241:2
district 3143:4 doubt 3169:17 3317:4,10 3320:9 E 3245:11 3284:5
3157:12,14,19 downstairs 3210:12 3320:11,16 E 3143:5 3144:1 efforts 3219:12
3211:3 3218:9 downstream 3149:6 drain 3213:6 3287:4 3145:1,1 3284:19 3321:13
3238:3 3240:13 3149:17,21 3308:19 earlier 3165:5 eight 3210:13
3294:19 3166:19 3169:4 drainage 3175:21 3197:9 3199:14 3211:14 3215:24
District's 3294:14 3181:7,8 3195:17 3183:18 3185:10 3290:2 3216:4 3221:1
ditches 3175:22 3201:3 3203:22,25 3186:12 3240:7 early 3193:19 3224:17 3225:11
diversion 3182:5 3204:14 3234:9,11 draining 3240:4 3226:18 3239:24 3226:2 3229:7
DIVISION 3141:19 3263:2 3268:25 3287:10 3285:8,8 3294:13 3262:10
3142:4,12 3269:4,11 3270:1 drainings 3184:1 easement 3166:13 eight-minute
doc 3156:21 3271:11,17 3272:1 drains 3183:6 3260:25 3267:5 3228:22
Docket 3139:3 3272:13 3274:14 3184:2 3310:1 eight-year-old
doctrine 3230:1 3277:11,14 draw 3150:18 easements 3281:11 3226:22
3268:20 3272:11 3278:10,18 3165:24 3291:14 3286:10,25 eighties 3153:2
3273:7 3274:23 3296:25 3297:15 draw-down 3273:19 easier 3185:13 3177:5
3275:16 3276:25 3298:4 3306:6 drawn 3185:25 easiest 3282:11 either 3176:3
3316:23 3319:22 3307:19 3316:21 dream 3194:22 east 3195:6,7,7 3230:12 3257:13
doctrines 3270:22 downtown 3163:23 drew 3165:23 3220:21 3285:17 3285:17 3308:9
document 3236:12 3297:12 3305:21 drinking 3217:16 3300:15,21 elaboration 3232:5
3269:24 3273:11 Dr 3177:3 3180:7,7 drive 3141:12 Easterby 3141:4 Eldridge 3190:15,22
3274:5 3279:2 3182:18 3183:1,11 3176:12 3210:9 3144:6 3145:15,16 3215:10
3300:6,7 3319:15 3183:17,24 3184:3 3213:15 3217:21 3173:17 3219:24 element 3290:25
documented 3287:7 3185:13 3186:10 3218:7 3219:1,1 3220:1,3 3221:13 elementary 3216:22
documents 3147:9 3187:9,14 3189:24 3220:4 3221:16 3222:17 elements 3161:11
3149:8 3156:12 3190:10,24 3191:3 driving 3173:24 3223:14 3225:20 3233:11 3243:15
3157:3,8,10,18 3191:3,10 3192:8 3293:24 3294:2 3282:14 3243:19 3289:24
3164:6 3169:7,22 3192:22 3193:16 drop 3174:11 economic 3216:5 elevating 3197:16
3179:1 3199:23 3193:23 3194:10 3195:13 3287:16 elevation 3186:14
3234:7 3239:13,15 3194:22 3195:10 dropped 3295:19 edge 3305:15 3198:1 3218:14
3239:20 3240:8,12 3195:22 3196:1,4 drove 3174:1,2 EDWIN 3141:4 3222:5 3255:2,9
3240:15,19,25 3196:16,23 dry 3234:19 effect 3154:19 3256:11,13,15
3241:7,9,11 3197:10,12 3261:24 3162:10 3168:21 elevations 3154:16
3248:3 3286:21 3198:19 3200:5 drywall 3224:3 3182:19 3184:3 3255:23,24
3197:8,14 3200:18

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3334]
elided 3161:11 3201:19 3208:7,10 3232:5 3258:8 3250:23 3254:21 3237:14 3241:14
3243:16 3222:4 3247:19 established 3177:1,5 3256:5 3259:18 3254:14 3264:13
eliminate 3181:15 3303:16,24 3304:2 3279:5 3261:9 3268:19 3289:18 3318:2
3201:12,12 enhancement estate 3309:15 3271:3,22 3272:8 3319:9
eliminates 3172:9 3153:2 3321:2 3272:12 3273:21 executed 3160:10
eliminating 3162:15 enjoy 3264:1 estimate 3241:3 3273:22 3278:10 3305:17
3162:15 enormously 3263:6 estimated 3237:16 3278:20 3291:18 exercise 3193:22
elimination 3161:24 enter 3321:18 3238:5 3292:3 3294:4 3267:24 3268:7,16
Elisio 3210:25 entered 3212:19 evacuated 3212:11 3307:11 3311:16 3273:18 3297:19
email 3274:3,12,17 3217:19,24 3214:1 3218:18,23 3317:2 3298:9
3306:17 3296:14 3226:18 evidentiary 3146:25 exhausted 3223:19
embankment entering 3217:17 evacuation 3223:14 exact 3150:3 Exhibit 3149:3
3189:1,9 3254:23 entire 3177:21 3223:17 3155:10 3156:13 3156:11 3157:15
embankments 3194:5 3206:17 evaluate 3158:22 3160:11 3206:13 3158:18 3169:22
3171:18 3245:14 3207:6 3210:23 3266:24 3256:13 3169:23 3190:14
3246:4 3254:1,12 3211:24 3225:12 evaluated 3182:19 exactly 3149:21 3201:3 3204:7
3254:13,17,19 3226:1 3227:1 3201:21 3260:12 3159:18 3161:14 3220:17 3235:13
3255:3,5,6 3256:8 3247:23 3249:5,6 3266:21 3306:17 3167:20 3173:5 3238:7 3274:1,2
3256:10 3303:9 3309:1 3175:16 3176:2 3281:19 3285:12
emergency 3155:8 entirely 3151:2 evaluating 3177:6 3189:2 3198:9 3300:6 3302:5
3160:2,2,3 3178:7 3163:23 3232:9 evaluation 3170:3 3222:5 3247:8 3303:4 3306:25
3272:2 3274:24,24 3266:2 evening 3196:5 3257:2,3 3270:10 3319:8
3275:17,17,19,20 entitled 3298:11 event 3159:14 3277:17 3278:12 exhibits 3281:19
3275:23,24,25 entries 3315:10 3160:5 3161:25 3299:4,7 3300:24 exist 3155:5 3197:23
3276:4,5,6,10,11 ENVIRONMENT 3172:2 3179:22 3301:2 3307:11,18 3281:17 3286:7,10
3276:12,13,15,17 3141:19 3142:4,12 3203:17 3220:11 3308:7 3312:17 3319:4
3276:19,19 equipment 3215:23 3237:13,18 3238:4 examining 3264:6 existed 3194:23
3278:23 3305:3,9 equity 3206:16,20 3238:6 3241:17 example 3163:16 3231:19 3257:19
3306:24 3307:8,14 equivalent 3153:15 3242:1 3259:3,5,8 3236:11 3237:16 3265:17 3293:5
3319:19,24 3320:1 3220:20 3241:22 3259:21 3261:15 3243:20 3259:13 existence 3313:20
3320:2,3,5 3299:4 3262:5 3296:2 3260:15 3276:6 existing 3190:25
emphasize 3230:6 erroneously 3285:5 3300:4 3302:2,8 3282:20 3287:10 exists 3231:20
enacted 3177:12 error 3191:12 3304:6 3322:3 3293:12 3294:6 3234:8 3286:8
3179:12 3208:14 3194:22 3251:20 events 3260:13 3295:1 3309:7 expect 3174:13
3313:18 3283:21 3310:19 eventual 3201:23 examples 3253:19 3175:22 3239:1
encouraged 3280:4 3310:22 3312:5 eventually 3180:11 exceed 3254:7 3315:19
ended 3227:13 3320:7,8,13,14,15 3212:16 3275:2 3303:13 expectation 3172:21
3296:19 errors 3191:14,15 everybody 3148:7 exceedance 3237:25 3173:8 3252:8
ends 3153:6 3255:10 especially 3154:16 3148:10 3166:24 3241:3 3253:3 3314:3
3256:23 3188:8 3176:11 3212:24 exceeded 3191:16 expectations
Energy 3216:8 espousing 3267:3 3217:25 3309:17 3191:16 3237:2 3172:23 3231:18
engineer 3210:7 ESQ 3140:6,7,17 eviction 3205:6 3244:16 3232:12 3251:24
engineering 3245:18 3141:4,11,20 evidence 3222:7,10 excellent 3148:10 3252:16,19,23
3248:24 3249:9 3142:5,13,14 3223:16 3229:25 exception 3225:13 3253:5,6 3293:3
engineers 3143:3 3143:5 3234:6,17 3237:15 excerpts 3179:16 3293:13,19 3321:9
3146:7 3148:25 ESQ.9 3140:8 3237:21 3238:4,8 excluded 3225:7 expected 3156:4,6
3159:20 3165:20 essential 3287:1 3239:2,3 3241:21 exclusively 3225:6 3159:20 3165:6
3165:21 3187:11 essentially 3172:9 3249:23 3250:10 excuse 3181:24 3173:3,14 3202:17

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3335]
3211:5 3226:10 3157:24 3160:24 3168:9 3190:2 3223:3 3224:6 fell 3299:4,7,10,11
3236:3,15,24 3160:25 3162:6 3231:17 3232:13 3227:14,25 3228:8 3300:2
3244:12 3245:24 3199:13 3203:6 3252:23,25 3267:2 fans 3219:13 felt 3221:3
3260:17 3270:6 3306:7 3310:9 3287:22 3288:5,9 far 3222:21 3260:12 FEMA 3187:9
3294:25 3303:11 3312:15 3289:8,10 3264:4,5 3278:18 3188:1,5 3222:20
3303:13,18 extraordinarily facts 3164:5 3297:10 3309:4 3224:10 3266:3
expects 3174:7 3260:2 3167:25 3168:1 farther 3233:7 3295:2
3180:19 extraordinary 3178:5 3194:24 fascinated 3175:13 field 3189:21
expenditure 3302:4 3259:2 3195:25 3196:22 fast 3166:25 3285:10,23
expense 3262:20 extreme 3272:19 3197:2 3230:21 faster 3274:13 fields 3198:2
3263:4,24 3272:1 3289:21 3296:8 3232:18 3233:23 fault 3151:18 Fifth 3231:12
experience 3215:1 eyesight 3322:4 3297:10 3307:11 3297:2,3 3232:16,20
3315:17 eyewitness 3186:16 3309:4,21 favor 3296:14 3266:10 3279:7
experienced 3262:3 factual 3172:2 3321:19 3296:1 3298:9
3263:3 3288:17 F factually 3171:8 fear 3212:3 3306:2
experiences 3213:11 F 3139:17 3172:12 3174:22 feasible 3274:15 Figure 3238:17
expert 3174:24 faced 3218:6 3181:19 3297:9 3287:15 filed 3148:4 3239:18
3180:20 3206:3 3271:13 fail 3233:6 3235:9 fed 3181:23 3268:14 3243:6
3207:5 3238:10,15 faces 3216:15 3237:9 3248:21 federal 3139:1 filing 3146:18
3238:18 3241:25 facets 3171:21 3250:17 3252:20 3231:9,14 3242:16 3239:11
3241:25 3251:12 facilities 3161:9 3318:15 3243:9 3246:20 fill 3261:22 3303:19
3260:5 3271:6 Facsimile 3142:20 failed 3174:22 3263:12 3266:3 3303:20
3283:3,4,14 fact 3148:14 3233:8 3258:5 3278:19 3281:5 filled 3193:2
3291:2 3297:1 3153:10,14 3161:9 3261:6 3262:13,15 3286:5,9,10,12 3200:17 3303:17
3314:5 3317:4 3167:14 3170:17 3282:1 3293:18 3289:20 3290:11 filling 3308:20
experts 3181:10,17 3172:25 3173:11 3295:7 3292:6,19 3309:24 fills 3159:19
3291:3 3297:4 3174:2 3177:6,21 fails 3233:5 3266:17 3309:25 3310:4,8 filthy 3227:3
explain 3197:18 3179:2 3181:10 failure 3208:18 3318:2,16 final 3150:22
explained 3273:18 3186:2 3190:22 3257:1 3276:20 federally 3166:17 3243:14 3247:11
3275:19,23 3201:6 3202:7 3307:25 feed 3182:1 finally 3211:11
3276:20 3285:21 3206:6,8 3209:23 fair 3239:12 feel 3202:17 3207:2 3212:19 3227:21
3290:4 3320:5 3216:22 3218:17 3302:19 3219:20 3230:6 3262:18
explaining 3300:7 3222:11 3223:20 fairly 3226:7 feeling 3293:25 3263:25 3274:22
explains 3241:8 3238:9 3243:13 fairness 3277:5 feet 3151:11 3152:7 3285:3 3287:21
3274:12 3249:25 3250:18 3298:1 3152:18 3163:8,8 3320:21
explanation 3283:9 3255:5 3259:7 fallen 3296:23 3189:16 3191:16 financial 3266:5
3285:22 3261:7 3262:6 3297:11 3191:16 3193:18 find 3176:19,20
explicit 3255:24 3263:2 3264:25 falling 3187:1 3194:7 3195:13,16 3214:8 3216:13
exposed 3151:25 3269:17 3270:4 falls 3176:5 3184:23 3196:18 3198:23 3267:4 3310:14
expressly 3166:9 3272:9,24 3276:13 3185:1 3214:17 3219:15 fine 3147:10
extend 3187:12 3284:8 3285:13,18 families 3176:16 3220:9,12,19 3228:13 3229:2,4
extended 3154:7 3285:19 3290:12 3204:24 3223:18 3224:13 3280:23,24
3262:22 3264:2 3290:18 3292:23 family 3174:16 3224:17 3236:5 3305:22 3312:11
3307:6 3295:17 3309:18 3211:7,17,21,24 3261:23 3262:7 fingers 3307:19
extending 3225:1 3313:10 3315:25 3212:1 3213:1,7 3282:15 3283:23 finish 3253:10
extensive 3219:11 3316:13 3319:23 3214:6 3217:13,17 3284:6 3306:12 finished 3146:20
3227:16 3322:5 3319:25 3320:2 3217:25 3219:9,17 3315:9 3319:18 3165:22 3316:9
extent 3149:15 3321:1 3222:24,25 3223:1 3320:19 fire 3305:9
factors 3167:9,16,17

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3336]
firearms 3214:11 five 3168:9 3179:21 3272:13,18 3201:6,13,23 flooring 3210:21

first 3146:23 3211:23 3214:7 3274:14,19 3277:7 3202:8 3206:6,8 flow 3153:21
3147:19 3148:1,4 3216:19 3217:23 3282:20 3286:13 3207:1 3208:17 3171:16 3256:20
3159:15 3165:10 3220:9 3225:16 3289:15 3293:11 3216:25 3218:2 3286:19 3307:2,4
3166:23 3169:21 five-year 3183:5 3294:1,11,14,15 3220:11,23 3309:2 3310:3
3169:23 3174:22 3250:24,24 3294:19,25 3295:2 3221:20,25 3312:3,3,15
3176:6 3177:10 flawed 3172:11 3295:3 3296:3 3222:10 3223:9 flowage 3166:13
3183:20 3184:20 flesh 3167:9 3298:19,20,25 3224:20 3225:4,15 flowed 3306:6
3184:21 3185:7,14 floated 3214:19 3301:5 3304:7 3231:19 3246:16 flowing 3168:17
3185:16,17,22 flood 3145:7 3309:2,6,8,19,21 3249:18 3259:8,10 3183:20
3193:12,16 3149:11 3152:23 3310:16 3313:23 3259:18,19,24 flows 3199:3
3194:11 3200:19 3155:9,21 3157:12 3321:5 3260:8,14,16,22 3220:14,18 3274:7
3200:19 3201:9 3157:14,19 3159:3 FLOOD-CONTR... 3261:3,4,7 3262:3 fluid 3305:11
3205:14,15 3161:6 3165:10,11 3139:4 3140:4 3263:3,20,25 focus 3178:21,23
3209:17 3211:22 3174:3,12,13 flood-prone 3175:18 3264:22 3269:2,4 3202:25 3229:17
3212:14,23 3215:2 3175:23 3176:8 3176:1 3272:14,15 3282:8 3236:19 3246:25
3227:2,11 3229:20 3177:22 3181:12 flood-proneness 3286:17 3287:9,12 3264:17 3282:23
3230:9,12,25 3183:16 3185:8 3175:20 3287:13,16 3288:3 3282:23 3289:7
3243:5 3245:21 3186:21 3187:10 flooded 3174:7 3288:12 3289:19 focused 3244:24
3254:2,6 3259:7 3187:12,15,17,17 3175:6 3178:16 3293:8,23 3294:7 3282:25 3298:21
3272:6,24 3283:21 3190:2 3196:23 3180:21 3187:4 3294:9,14,16,18 focuses 3258:24
3286:4 3289:9 3199:14,21 3197:1 3199:12 3294:20,23 3264:13
3292:16,17 3297:5 3201:10,22 3202:5 3206:23 3217:1,2 3295:18 3296:2,6 focusing 3244:20
3298:18 3304:23 3202:6 3203:12 3222:6 3278:11,17 3303:13 3305:3 3260:3
3308:8 3314:17 3204:9,15 3207:2 3278:18,19 3282:4 3308:5 3309:8,11 fog 3194:18
3319:21 3207:24 3208:3,17 3282:15 3289:11 3309:11 3311:10 folks 3148:12
first-floor 3218:13 3214:5 3215:8 3295:5 3296:21,22 3316:1 3318:1,6 3188:2 3195:18
3222:5 3216:11 3217:11 3311:11 3313:24 3318:23 3321:6,15 3213:4 3223:22
Fish 3167:9,12,16 3224:10,10,11 3315:20 floodings 3182:20 follow 3195:16
3167:24 3168:9 3226:12 3227:12 flooding 3151:20 3260:19 3261:2 3273:11 3274:20
3173:1 3202:21 3229:20 3234:9,12 3152:1 3160:24 3318:18 3320:2
3209:15 3230:8,20 3234:19,22 3165:15,19 3169:4 floodplain 3216:16 followed 3160:5
3230:23 3231:15 3235:20 3236:2,14 3172:8 3175:6,25 3282:17,18 3179:12 3272:9
3231:20,24 3232:3 3236:15,24 3237:3 3176:18 3177:8,12 floods 3164:20 3275:14,23
3232:5,7,9,22 3237:17,18 3238:2 3177:19 3178:11 3166:9 following 3276:10
3233:12,16 3239:22 3241:17 3178:17 3179:7 floodwater 3210:13 3318:3
3251:24 3252:10 3244:13,17 3180:7,17,25 3212:22 3216:14 foot 3162:18
3252:25 3258:20 3245:23,23 3248:4 3181:2,2,4,11,13 3217:6 3219:10 3179:21 3191:13
3258:24 3267:1,22 3248:12,14,16,22 3181:18 3182:19 3234:5 3265:6 3191:14,15 3194:4
3287:22,25 3288:1 3249:5 3251:18 3182:22,22,24 floodwaters 3210:17 3196:19 3198:3,4
3288:2,8,10,25 3252:8 3253:4 3183:2,22,25 3221:2 3225:6 3198:22 3227:4
3289:8,10,25 3254:7,23 3255:2 3184:10,10,11,25 3240:4 3264:2 3283:22 3284:2,6
3295:8,22 3313:2 3255:3 3256:15 3185:2,3,5 3187:6 floor 3142:7,16 3310:19,23 3311:5
3316:19 3317:22 3257:3 3259:2 3187:20,22 3190:3 3185:17 3209:2 footing 3153:6
3319:2 3260:9 3261:8,17 3190:11 3195:15 3211:22 3212:23 3154:16
fit 3188:14 3263:8 3266:6,7 3195:23,25 3215:2 3217:15 Force 3213:13
fitness 3215:23 3266:18 3267:4 3196:25 3197:16 3219:8,14 3227:2 forced 3187:3
Fitzgerald 3195:5 3271:11,12 3197:17 3200:9,22 3227:11 3221:4 3275:1

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3337]
forcing 3277:3 3240:18 funding 3248:7 3154:5 3161:15 glass 3312:19

3297:24 forward 3152:12 funnels 3161:17 3171:17 3236:19 global 3192:7
foreclosed 3267:23 3288:23 furniture 3211:12 3236:21 3244:8 glossed 3161:13
foregoing 3323:5 found 3214:13 3211:21 3212:23 3245:14 3249:7 go 3146:22 3149:8
foresaw 3236:1 3260:9,16,22 3213:1 3215:20 3256:22 3268:24 3151:22 3156:11
3244:9 3267:2 3268:21 3217:14 3269:2 3273:17 3156:20 3158:5
foreseeability 3318:5 further 3221:22,23 3278:9 3306:10,10 3165:25 3169:19
3159:8 3164:22 four 3158:8 3163:8 3266:16 3276:8,18 3306:12,13 3174:8 3175:21
3165:7 3167:5 3210:14 3211:24 3301:22 3318:10 gauge 3187:16,18 3177:23 3178:14
3168:5,13 3170:15 3214:2 3220:4 3320:5 3188:19 3194:12 3181:14 3182:6
3171:5,9,19 3223:18 3229:17 future 3166:10 3194:13,14,21,24 3184:1 3187:13
3172:1,5 3176:8 3264:4,9 3265:8 3218:1 3227:24 3195:3,11 3285:4 3188:18,20
3176:22 3177:15 3294:12 3315:9 3260:18 3262:8 3285:8,11,11,14 3192:11 3199:3
3179:7 3180:4 four-foot 3205:19 3266:5,21 3303:8 3285:20 3311:8,9 3200:1 3207:20,23
3231:10 3235:9 3227:10 3321:5,6 3311:13,16,23,25 3209:15 3212:5
3242:11,12,17,21 four-wheel 3217:20 3312:11,12,13 3226:24 3232:21
3243:1,18 3245:2 Fourth 3142:7 G gauges 3191:2 3233:7 3253:23
3246:6,9,24 frank 3176:20 G 3145:1 3192:14 3194:20 3256:1 3257:4
3251:21 3253:17 frankly 3184:17 Galloway 3293:17 3285:7 3263:18 3266:16
3254:10 3258:9 3185:25 3304:22 3314:6 general 3149:12 3270:24 3273:5
3270:23 3302:13 3308:22 Galveston 3143:4,8 3275:20 3314:4 3274:8 3288:23
3303:2,23,24 free 3252:17 game 3160:1 3167:9 generally 3164:9 3305:11 3314:11
foreseeable 3164:23 Freeway 3141:5 3167:12,16,23 3175:25 3268:4 God 3169:25
3168:6,19 3177:19 frequency 3156:7 3168:8 3173:1 3270:17 3307:22 goes 3183:5 3185:6
3242:19 3249:16 3157:22 3158:4 3202:21 3209:15 3307:22 3198:20 3277:12
3250:19 3302:13 3169:16 3237:17 3230:8,19,23 generated 3150:25 going 3145:14,19
3302:19 frequent 3158:2 3231:15,20,24 3240:12 3255:4 3149:25 3152:7,12
foreseen 3238:11 3258:18 3260:19 3232:3,4,7,9,22 generic 3292:14 3155:3,17 3157:14
3244:22 3251:12 3262:16 3287:13 3233:12,16 getting 3148:8 3158:18 3160:12
3251:16 3302:21 Friday 3139:13 3251:24 3252:9,25 3154:22 3167:15 3162:6,16 3165:25
forest 3318:13,20 fringe 3154:17 3258:20,24 3267:1 3174:24 3187:4 3167:6,8,14
forever 3216:16,17 Fromme 3260:15 3267:22 3268:23 3201:25 3315:1 3169:6 3170:7,8
3220:5 front 3213:24 3269:6 3271:2,8 Giron 3181:20,21 3173:9,16,19,20
forget 3185:25 3218:21 3221:9 3271:23 3272:7 3193:12 3195:15 3176:21 3180:4
3252:12,13 3277:6 3224:4 3227:14 3287:21,24 3288:1 3195:21 3196:23 3184:6 3189:5,18
forgetting 3321:4 3316:7 3288:2,8,10,25 3209:21 3221:16 3189:20 3190:9
form 3157:4 full 3210:22 3214:7 3289:8,10,25 3222:11,14,24 3191:25 3193:8
formed 3215:11 3261:25 3295:8,22 3306:4 3282:3 3202:15 3203:16
Fort 3143:6 3213:12 fully 3225:17 3306:7,8 3313:2 give 3187:6 3191:8 3208:20 3214:20
3222:8 3315:3 3287:18 3308:10 3316:19 3317:21 3253:19 3297:17 3217:10 3226:21
forth 3229:15 fun 3194:17 3319:2 3303:4 3228:8 3252:24
3230:7,11 3231:9 fundamental 3166:3 games 3299:17 given 3162:2,2 3256:7 3263:8
3231:16,16 3233:9 3205:6 3306:2 3303:1 3317:1 3229:16 3235:18 3267:11,15
3235:13 3242:24 fundamentally gap 3166:2 3260:2,10 3261:9 3269:16 3271:11
3252:20 3275:24 3151:21 3155:6 garage 3213:9 3272:19 3274:15 3271:11 3272:13
3285:25 3289:5 3164:4,18 3167:25 garbage 3224:5 3285:6 3316:9 3273:25 3276:9
3296:12 3320:3 3172:15 3187:25 gated 3174:10 glad 3155:24 3282:20 3285:21
forties 3163:1 3299:9 3310:13 gates 3152:13,15 3304:11 3288:22 3289:3
3153:19,20,21

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3338]
3291:23,23,24 3268:15 3270:16 3282:5 3286:19 happen 3159:21 3238:5,6 3242:3

3292:5,8 3300:7 3270:18 3273:15 granting 3310:1 3162:12,12 3167:3 3250:11 3260:3
3301:22 3303:2,19 3277:3 3287:17 graphic 3150:11 3170:4,13,14 3278:19,22
3308:25 3310:14 3290:6,11,17 3186:7 3238:18 3178:20 3180:17 3294:13,18 3316:5
3311:8 3313:4,21 3291:2 3292:6,19 graphics 3244:14 3191:24 3212:4 3317:6
3313:22 3296:20 3297:14 grapple 3316:13 3226:21 3240:23 HART 3141:3
good 3145:4,5,16,24 3297:24 3298:6,13 gray 3153:14 3240:24 3291:24 harvesting 3318:8
3146:2,5,9,10 3298:18 3299:17 great 3158:24,24,25 3300:9 3301:14 Harvey 3150:2
3164:8 3191:19 3304:11,16 3305:2 3159:2 3161:12 3302:23 3304:6,6 3153:15 3158:6
3209:10,12 3220:1 3305:16 3306:4 3213:16 3285:9 3313:17,20 3159:22 3162:4,7
3220:2 3223:2,2 3307:6,16,18 greater 3238:19 happened 3149:22 3162:12 3177:12
3225:21,22 3308:16 3309:5,7 3260:6 3275:5 3150:2 3159:15 3177:21 3179:11
3235:22 3247:14 3310:1,5 3311:15 greatest 3240:21 3160:5 3162:4,5 3187:18 3200:6,10
3279:9 3288:24 3313:6,12,14,15 greatly 3303:14 3162:11 3165:11 3201:22 3203:4,6
3304:20 3305:21 3314:7,12 3315:15 green 3198:1,21 3169:12 3179:3 3203:17,18
3310:24 3316:22 3316:2,15 3200:9 3204:14 3193:9 3195:20 3204:10 3210:4,11
3317:18 Government's 3216:18 3224:6 3196:21 3199:17 3211:8 3213:21
government 3153:9 3164:14 ground 3185:9 3199:25 3203:23 3215:17,25 3216:5
3145:22 3147:4 3172:6 3176:22 3189:17 3191:1 3204:5 3208:25 3216:7,9,24
3150:17 3151:4 3179:25 3180:24 group 3173:21 3236:20 3247:12 3218:19 3220:9,15
3152:21 3153:1 3202:9 3210:6 3219:24 3269:7,7 3249:2 3254:20 3220:18,19,22
3155:1,2,20 3216:7 3230:16 3272:14 3281:4,5 3295:6 3222:1 3224:13,14
3157:1,10 3159:8 3258:17 3268:17 Grove 3211:1 3296:25 3299:22 3225:25 3226:3
3160:16 3164:10 3298:3,20 3305:5 growing 3211:14 3301:11 3302:8 3227:18 3237:19
3164:11,11,15 3307:24 3308:24 3226:9 3276:19 3304:5,7 3311:21 3237:22,23 3238:5
3165:9 3166:21 3309:12 3316:22 guarantee 3274:18 3317:20 3238:12,19 3239:4
3168:7,19,21,22 Government-imp... guess 3195:15 happening 3163:6 3239:9 3241:21,24
3169:1 3171:13,20 3197:1 3206:4 3307:21 3302:2 3242:1,8,20
3171:21 3172:9,18 government-indu... 3308:8 3313:19 happens 3200:16 3249:15,22
3174:22 3177:15 3181:2,13 3288:3 3314:10 happy 3180:12 3250:18,25
3178:22 3180:16 government-owned guesswork 3259:21 3228:11 3251:15 3254:20
3180:16,21 3181:4 3150:17 3162:25 guidance 3273:11 hard 3166:25 3254:24 3255:4
3181:6,9 3191:2 3178:12,16 3193:1 Gulf 3141:5 3156:17 3197:24 3256:19 3259:9,23
3194:19 3202:23 3193:5 3203:11 3163:22 3169:15 hard-pressed 3262:5,12 3264:25
3203:2,18,24 3224:8 3225:2 3250:13,21 3238:11 3241:24 3266:20 3268:20
3204:2,16 3207:4 3234:20 3236:13 3300:21 3302:8 hardened 3153:7 3271:10 3272:16
3215:18 3216:13 3237:2 3244:16 gun 3239:15 3242:8 3255:11 3256:23 3273:13,17,24
3218:12,15,17 3245:22 3248:11 3301:6 3257:15 3277:8 3278:22
3219:23 3226:14 3248:13 3249:4 gutted 3211:17 harder 3178:24 3282:18 3283:25
3230:12 3236:15 3254:8 3271:16 3212:25 hardest 3227:25 3290:12 3295:6,19
3245:1 3246:12,13 3308:15 hardwoods 3222:18 3299:3,12,18
3247:3 3251:22 governmental H harm 3209:3 3266:8 3300:2,3,10,16
3252:15 3258:7 3263:13 3292:20 H 3140:6 3268:11 3297:8 3305:2,6 3316:4
3260:24 3262:20 3297:20 3305:23 half 3191:14 3194:4 3305:23 3317:1,7,13
3262:24 3263:1,4 governments 3310:4 3203:19 3221:7 harms 3278:24 Harvey-like
3263:12,15,16,24 Governor 3276:15 Hampshire 3142:8 Harris 3157:11,13 3259:21
3264:14,18 3265:4 grandson 3224:18 hand 3249:15 3157:19 3222:8 hazard 3295:2
3267:24 3268:5,10 granted 3281:11,16 3301:6 3226:20 3238:2,3 HB 3207:18
hands 3214:25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3339]
head 3168:16 3187:24 3196:18 3179:22 3186:15 3250:3 3253:8 3163:23 3169:14
3184:23 3187:1 3211:9 3217:18 3187:24 3195:22 3267:7 3270:14 3221:21 3224:21
3313:12 3224:16 3196:5,13 3197:5 3279:9,15 3280:21 3264:24 3280:5
health 3268:5 high-level 3202:16 3198:6 3200:8,11 3281:1 3288:13,15 3290:13 3294:21
3270:19 3272:21 higher 3152:17 3202:5 3206:16,19 3288:16 3291:9 3297:13 3305:21
3279:4 3155:7,10,19,19 3206:24 3207:3,3 3296:11,16 Houston's 3175:18
hear 3186:21 3280:7 3175:15 3220:15 3207:7 3208:16,19 3315:17,24 3316:7 3175:19 3176:1
3288:7 3290:23 3240:13 3211:1,5,14,17 3321:5,17 Howard 3139:10
3299:18 3304:11 highlight 3290:5 3212:12,14 3213:6 Honor's 3318:17 huge 3227:13
heard 3172:11 hire 3210:19 3213:7,23 3214:10 HONORABLE 3228:7
3175:17 3180:24 historic 3241:11 3214:25 3215:4 3139:17 hump 3185:23
3197:5 3291:22 3271:14 3216:23,24 Hooper 3282:7 hundred 3158:9
3298:18 3304:11 historically 3229:21 3217:10,17,19,24 hope 3307:19 3283:7,7 3306:12
3310:13 3311:15 3237:19 3272:17 3218:7,20 3219:3 3322:2,3 hundred-year
3314:3,8 3318:9 3219:4,15,18 hoped 3213:20 3183:6,9 3187:17
Hearne 3150:14,24 history 3218:1 3220:5 3221:10 hopefully 3254:15 3282:16,17
3151:4,8,9,17,24 3224:23 3259:4 3225:25 3226:3,8 hoping 3301:13 hundreds 3264:23
3152:5,22 3153:15 3272:19 3276:22 3226:13,16,18 horizon 3241:1,10 3277:15
3156:1,15,16,24 3296:8 3317:8 3227:1,5,6,7,11,17 3241:12 3303:13 hung 3319:23
3156:24 3157:21 hit 3198:23 3211:8 3227:20 3264:20 Horsepen 3198:10 hurricane 3221:22
3158:3,5,13,25 3213:21 3218:19 3304:17 3313:4,11 Horsepen-Langha... 3237:19,22,23
3159:5,13 3164:19 3227:25 3228:7 3313:13 3316:6 3198:11 3238:5,12,19
3164:20 3165:5 3235:12 3238:12 homeowners 3176:7 hospital 3213:21 3239:4,8 3241:21
3169:12 3170:8,12 3250:8,10 3276:22 3206:9 3208:15 hotel 3227:8 3241:24 3242:1,8
3179:2,3 3237:4 3282:18 3215:11 hour 3199:19 3242:20 3249:15
3237:10 3239:16 hits 3193:1 3200:21 homes 3149:20 3228:23 3249:22 3250:18
3240:17,20 3241:4 3259:23 3298:19 3169:3 3173:24 hours 3150:15 3250:25 3251:15
3241:19,22 3242:5 hitting 3189:19 3174:9 3175:14 house 3174:6 3254:20,24 3255:4
3249:24 3250:4 hold 3154:5,7 3179:23 3206:10 3185:20,21 3256:19 3259:9,20
3299:5,10 3300:4 3155:23 3156:1 3216:3 3265:3,7 3187:19 3188:23 3259:23 3262:5,11
3300:8,18 3301:23 3159:12,17 3289:12,12 3196:14 3199:12 3264:24 3266:19
3302:6,7,21 3160:25 3164:19 3296:21,21,24 3204:23 3205:19 3268:20 3271:10
3303:7,17 3165:24 3168:10 3297:8 3313:9,10 3205:19,19,21 3272:16 3273:13
heavy 3186:22 3179:19 3301:6,23 3313:19,22 3316:4 3211:22 3212:2,20 3273:24 3277:7
height 3154:4 3304:4,4 3306:15 3319:1 3321:4 3217:1 3218:13,15 3278:21 3282:18
3155:10 3307:18 honestly 3234:15 3219:22 3220:4,25 3290:12 3295:6,19
heights 3191:18 holding 3249:5 Honor 3145:5,16,24 3221:4,6,17 3316:4 3317:1,7
held 3184:5 3201:22 holds 3168:11 3146:2,5,9,15 3222:11,18,21 3317:13 3321:1
3202:8 3256:16 hole 3194:15 3156:11 3164:17 3223:17,20 3224:3 hurt 3269:7,7
3260:12 3261:2,4 Holland 3213:12,15 3168:3 3193:22 3224:6,7,15 3271:12
3288:16 3213:21 3214:4,10 3209:10,13 3220:1 3264:11 husband 3218:25
help 3145:19 3184:9 3214:24 3215:8 3221:14 3222:23 houses 3193:11 hydraulic 3162:10
3211:16 3269:6,8 Hollands 3210:2 3225:9,18,21 3205:17 3224:9 hydro 3197:21
3271:12 3213:16 3214:1 3227:1,22 3228:11 3274:19 3303:10 Hydroelectric
helped 3268:24 3215:4 3228:16 3229:5,12 Houston 3140:19 3261:1
herring 3245:15 home 3148:3,12 3231:6,8 3232:9 3141:6,13 3148:15 hydrograph
hiatus 3184:12 3156:3 3172:7 3233:2 3239:20 3149:4,5 3159:3 3201:10
high 3186:22 3174:16 3176:15 3243:19 3248:1 3161:19 3163:22 hydrographs

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3340]
3184:18 3185:7 impede 3312:15 3215:18 3217:7,9 individuals 3209:6 instantaneous

hydrologist 3193:8 implausible 3308:12 3217:16 3225:11 induced 3181:4 3273:8
hydrology 3154:22 important 3148:21 incidental 3168:14 3224:20 insulation 3210:20
3245:19,21 3249:3 3155:24,25 3168:21 3179:8 industry 3241:8 insurance 3224:10
3253:22 3254:4,5 3159:25 3184:5 include 3244:14 inevitably 3259:10 3226:12
hypothetical 3191:4 3191:5 3193:18 included 3211:21 3259:16,18 3260:9 intake 3312:1,6,15
hypotheticals 3199:4 3212:9 3212:25 3239:13 3260:13 3261:3,7 3312:23
3320:15 3244:25 3253:1 3253:25 3294:12 3261:13 intend 3147:8
3265:13 includes 3238:18 infer 3313:20 3301:4,5,6,7
I importantly 3243:8 3315:17 3320:25 intended 3151:8
idea 3226:13 3177:14 3311:24 including 3152:13 3321:1 3159:15,16
3241:18 3242:7,18 impose 3153:25 3152:14 3219:12 inference 3291:5 3165:20 3168:13
3263:19 3272:6 3154:9 3179:13 3230:5 3231:17 inferences 3164:6 3179:13 3190:18
3274:15 3282:19 3185:5 3298:5 3241:5 3266:25 3164:25 3196:20 3208:10
3296:1 3304:16 3272:8 3274:4,6 inflection 3299:16 3230:13 3234:4
Ideker 3247:7 imposed 3151:19 3290:11 3317:3 inflict 3262:22 3235:6 3258:4
identical 3230:20,21 3153:19 3171:16 income 3210:10,24 inflicts 3265:22 3262:1,25 3286:16
identified 3293:3 3175:23 3301:18 3216:9 influence 3230:22 3301:8,9,10,17
identifies 3289:11 3306:5,8 inconsistent 3243:5 influenced 3213:10 3304:6 3305:19
ignore 3270:4 imposes 3171:13 incorporates inform 3232:18 intending 3220:5
3271:19 3286:3 3200:22 3284:24 3233:24 intends 3234:12
3288:8 imposing 3152:23 incorrect 3165:14 information 3164:1 intense 3192:19
ignored 3184:2 3163:14 3177:9 3234:6 3235:3 3252:6 3284:11 3199:18
ignores 3266:1 imposition 3297:20 3240:18 3264:16 3291:14 3293:5 intensities 3299:8
3272:23 3286:6 3305:23 3273:14 3293:19 3294:4 3315:15 intensity 3199:19
II 3164:3 3247:13 impossible 3299:25 incorrectly 3275:18 informing 3178:5 intent 3151:25
images 3177:4 impound 3150:8 increase 3153:12,23 initially 3227:8 3165:8 3226:8
imagine 3208:19 3165:17 3289:21 3254:23 3272:14 injured 3213:14 3234:11,16,16,24
3291:24 3292:2,4 impounded 3175:23 3274:18 injury 3262:23 3235:2 3270:22
3308:15 3313:17 impoundment increased 3153:7,8 3265:20,23 3301:15,18
3320:22,24 3208:9 3162:24 3169:16 ink 3173:7 3302:18
imbue 3159:8 impoundments 3268:25 3269:3 inlet 3193:25,25 intentional 3164:23
immaterial 3154:25 3153:3 increasing 3184:4 input 3192:13 3168:20,25 3175:2
3233:17 impressed 3321:22 incredibly 3239:4 inputs 3192:8 intentionality
impact 3155:13 improper 3321:7 3242:21 inquiry 3164:22 3167:4 3168:7
3195:17 3203:7 improved 3245:25 independent 3268:16 3202:20
3206:13 3207:3,11 3246:1 3201:19 inside 3185:20,21 interactions 3225:2
3209:7 3218:6 in-a-thousand- Indian 3211:1 3211:14,15 3213:6 interest 3230:13
3256:18 3289:22 3242:6 indicate 3263:1 3214:25 3215:18 3258:17 3260:1
3292:14 inaction 3246:13,22 indicated 3199:23 3218:4 3224:17 3267:4 3298:14
impacted 3187:22 3246:25 3263:18 3220:18 3265:7 3290:4,20 interesting 3175:9
3234:22 3238:25 inappropriate indicating 3185:15 3314:12 3194:11
3250:25 3264:24 3304:21 3198:13,21 3199:9 insofar 3191:8 interestingly
3278:21 3285:11 inception 3156:1 3202:12 3233:17 3206:22 3224:9
3316:5 3244:22 indication 3276:18 inspection 3222:23 interference
impacts 3281:25 inches 3150:15 individual 3289:6 installed 3171:17 3258:17 3259:5
3290:12 3318:23 3210:13 3211:15 3290:14,15,16 instance 3166:10 3262:15
impaired 3212:10 3214:16,18 individually 3289:3 instances 3244:17 interior 3221:11
impassable 3212:13

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3341]
interiors 3265:13 3293:13,19 3314:3 3222:20 3226:19,21 3162:8 3164:4,12

intermittent 3321:9 jars 3192:17 kayaking 3219:3 3164:25 3165:8
3259:16 3260:19 invoked 3160:3 Jean 3212:6 keep 3165:10 3166:20 3167:1
internal 3274:10 involve 3240:12 Jeff 3226:19 3184:20 3193:13 3168:5,10,18,25
interpolate 3188:16 involved 3148:5 job 3176:19 3305:21 3259:22 3267:15 3170:11 3172:7,20
3188:20 3160:23 3240:3 3312:8 3299:16 3301:3 3173:18 3174:5,15
interpolated 3310:1 Johnson-Muic keeping 3149:11 3174:19,23 3175:5
3187:18 involves 3288:10 3156:5 3160:13 3268:24 3269:1 3175:7,18,18
interpreting irrelevant 3157:3 3287:5 keeps 3159:25 3176:3,17,18
3287:19 3286:16 Johnson-Muic's 3219:21 3296:20 3178:19 3179:21
interprets 3268:6 Irvine 3140:16,17 3287:2,18 3309:14 Kelliwood 3226:4 3180:2 3184:14
interval 3183:8,10 3145:9,13 3182:2 Joint 3149:3 kept 3244:19 3185:17 3187:11
3183:14 3241:13 3195:6 3235:13 3302:4 3277:16 3278:9 3187:16 3189:15
3261:10 isolated 3166:12 3303:4 3306:25 key 3150:6 3154:8 3191:9 3193:8
intervals 3260:17 3259:4 3319:8 3167:7 3192:8 3194:2 3195:1
introduce 3145:9,21 issue 3151:18 Jose 3210:8 3200:4 3196:13,15 3201:1
3145:22 3148:10 3157:9 3159:8 judgment 3275:4 KHERKHER 3204:23 3205:12
introduced 3281:20 3164:3 3168:13 3296:13 3321:19 3141:3 3207:11 3208:13
inundate 3218:16 3171:3 3173:1 judicial 3207:16 kick 3173:16 3208:22 3220:10
inundated 3210:13 3192:7 3199:24 3291:21 kicked 3174:24 3222:5,21 3227:22
3212:12 3219:15 3203:1 3221:24 jump 3311:4 kidney 3213:22 3246:6,10 3248:9
3225:13 3230:3,4 3232:6 June 3222:21 kids 3211:3 3216:21 3250:15 3255:25
inundating 3160:17 3238:10 3247:6 jurisdiction 3229:24 3216:22 3218:11 3269:13 3275:12
inundation 3208:6 3253:11 3254:19 3233:1 3258:22 3219:7 3278:6 3280:15
3209:19,20,24 3258:1,25 3260:4 3266:12 kind 3167:24 3288:14 3290:22
3226:13 3288:18 3260:12 3261:25 jurisdictional 3168:15 3173:20 3292:25 3299:8,19
3289:14 3315:7,8 3262:12 3264:6 3233:15 3176:5 3185:18 3305:10,10
invade 3230:13 3266:15 3267:22 justice 3141:18 3221:10 3226:4,13 3306:16 3307:5,10
3258:5 3285:6,19,21 3142:3,11 3145:25 3259:5,15,18 3307:15 3311:7,17
invasion 3202:14 3286:1 3305:22 3146:1 3275:12 3285:20 3295:14 3311:18 3313:3,7
3204:24,25 3205:1 3320:1,7,10 3277:5 3298:1 kinds 3169:15 3313:18,24 3315:9
3210:5 3216:6 issued 3275:20 justification 3221:24 3315:11
3217:22 3230:14 3286:7 3317:22 3286:12 kitchen 3213:1 knowing 3235:4
3258:6 3262:19 issues 3146:25 justify 3230:17 3215:21 3217:15 3242:12
3263:4,23 3264:8 3209:4 3286:3 JX 3237:1 3240:19 3219:5 knowledge 3170:11
3264:15 3290:10 3295:13 3276:1 3319:15 knew 3163:5 3165:4 3172:15 3176:7,10
invasion' 3166:12 3316:12,17 3173:14 3174:21 3178:22,23 3223:7
invasions 3259:4 3321:24 K 3176:11 3178:25 3293:10 3321:6
inverted 3147:18 iterative 3240:11 Kansas 3268:3 3179:1,9,22 known 3226:16
investing 3213:19 3270:15 3180:1 3218:15 3249:17 3251:17
investment 3174:18 J Kappel 3237:23 3234:25 3237:4 3268:8 3293:7
3206:17 3210:9 Jackson 3140:9 3242:4 3260:3 3246:16 3249:17 knows 3251:6
investment- 3293:2 Jaden 3224:18 3284:13,15,18 3251:17 3285:20 3276:8 3288:13
investment-backed jail 3252:17 Kappel's 3284:24 3293:7 3302:6,7 3311:20
3172:21,22 3173:8 James 3143:5 Katy 3211:3,3,8 3304:3,6 Kris 3146:1
3231:18 3232:12 3146:8 3216:21 3218:9 knife 3305:15 KRISTINE 3142:5
3251:23 3252:16 james.e.purcell@... 3221:19 3226:8 know 3155:2 3156:6 kristine.tardiff@...
3252:18,23 3143:10 kayak 3211:10 3159:7 3160:1 3142:9
January 3221:6 3215:17 3219:21

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3342]
Kulwant 3210:7 3197:11 3198:8,10 lays 3184:23 3175:15 3180:25 line 3147:16,16
Kurt 3212:6 3198:18 3199:25 leads 3286:24 3181:3,9,11 3150:18 3153:14
3201:17,20 learn 3191:23 3183:7 3185:16 3153:14 3156:3
L 3220:14,18 3312:10 3188:24 3189:18 3159:16 3160:18
L.L.C 3140:16 language 3272:4 learned 3172:14 3192:7 3195:11 3161:3,4 3164:23
L.L.P 3140:5 3141:3 3294:12 3315:5,5 3175:12 3184:21 3196:20 3200:9,21 3165:17,24 3167:8
lack 3162:23 3315:13 3319:10 3199:17 3201:7 3208:5 3167:11,17,23
3229:23 3319:16 learning 3152:19 3240:13,13 3257:4 3168:8,15 3170:10
lacking 3273:1 lap 3148:19 3157:6 3257:14 3258:18 3173:4 3177:2,3,5
lacks 3260:18 large 3188:22 lease 3210:15 3259:6 3261:18,23 3177:11,17,20,22
3266:11 3190:1 3229:21 leased 3210:2 3262:1,9,16 3200:5,10,10,15
lake 3223:20 3237:9,19 3240:22 leave 3174:23 3265:24 3275:24 3201:9 3202:19,22
Lakes 3190:15,22 3251:18 3256:16 3206:6,7 3217:20 3275:24 3276:4,7 3209:14 3213:14
3215:10 3263:6 3266:7 3221:4 3283:17 3297:6 3300:18 3219:8 3230:11,25
land 3150:16,17 3272:17 3289:15 left 3194:21 3198:7 3301:10,25 3307:8 3231:8,22,24
3151:5,13,24 3289:20,21 3200:24 3214:12 3307:9,9 3312:3,4 3232:5,7,15
3152:6,9 3154:15 larger 3248:21 3214:18 3220:12 3312:16 3320:2,2 3233:6,9,11
3155:18 3160:17 largest 3158:15,17 3222:13 3315:11 levels 3186:15 3234:2 3258:15,16
3160:23 3161:2 3165:6 3235:11 legal 3301:15 3187:12 3262:6 3262:14,18
3162:25 3163:3,5 3244:11 3250:9 3304:25 liability 3153:10 3265:22 3266:17
3163:7 3171:14 3259:3 3276:21 legally 3171:8 3172:9 3181:5 3277:1 3281:3
3173:1,15 3175:24 3296:7 3300:11,18 3172:12,13 3232:24 3254:15 3303:20 3310:20
3177:9 3178:12,16 3317:8 3304:13,13 3254:16 3259:15 3310:21
3193:5 3203:10,11 Larry 3140:8 legislature 3275:5 3267:2,23 3292:13 lines 3155:23
3204:18 3208:12 3145:17 length 3149:8 3295:23 3159:19 3208:1
3224:8 3225:2 lasted 3217:23 3192:4 3229:16 liable 3261:14 lingered 3210:14
3234:20 3235:19 lastly 3206:2 3264:4,5,8 3265:6 3316:16 3295:20
3236:7,13,15,22 3224:21 3289:1 3290:19 lie 3166:7 3297:3 lip 3155:12
3236:23 3237:2 late 3146:19 3322:3 lies 3208:4 liquid 3305:10
3243:22 3244:1,10 Laura 3142:13 Lesikar 3189:16 life 3213:11 3223:19 list 3216:11 3314:3
3244:16 3245:22 3146:6 3224:22 3228:2 3235:25 3314:6,8
3246:17 3247:20 laura.duncan@us... Lesikar's 3225:8 3259:25,25 listening 3148:3
3248:11,13 3249:4 3142:21 lesser 3150:23 3267:25 3303:12 3280:4
3254:8 3258:24 law 3159:11 let's 3161:8 3170:16 lifetime 3203:2 literally 3159:24
3263:12 3271:16 3172:17 3207:12 3200:1 3223:24 lift 3306:9,10 3167:14 3183:25
3289:9 3301:24 3208:3,13 3218:3 3229:7 3231:3 3312:19 3297:3,19 3298:20
3302:1,10 3303:10 3224:15 3266:17 3243:13 3267:20 lifted 3306:13 litigation 3148:6
3303:14,22 3305:3 3268:6 3280:18 3270:4 3279:11,11 light 3168:16 little 3148:16 3161:8
3306:1 3308:2,15 3292:2 3293:1 3288:23 3298:17 3268:18 3271:14 3163:7 3164:25
3309:15 3310:14 3298:16 3304:14 3298:24 liked 3265:2 3169:5,6 3170:16
landowner 3264:20 3304:20,21 LETTOW 3139:17 likelihood 3178:4 3173:2,19 3174:9
landowners 3164:12 3313:17,20 levee 3161:25 3261:8 3178:24 3189:19
3293:9,21 3317:18 3321:8 3162:15,23 3163:6 limited 3243:24 3199:22 3202:17
lands 3160:22 lawn 3217:7 3243:20 3288:3 3204:14,19
3193:1 3287:14,17 Lawrence 3280:16 level 3152:21 3153:4 limits 3149:18 3221:23 3225:14
Lane 3211:1 lawyer 3167:25 3154:1,25 3159:13 Lincoln 3313:8 3227:4 3253:12
Langham 3182:8,9 3173:11 3160:25 3161:4 Lindner 3226:19 3255:22 3298:24
3188:2,4 3189:3 lay 3214:4 3166:1 3173:20 3238:2 livable 3227:18
3190:16,21 3197:6

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3343]
live 3164:12 3315:9 lucky 3217:18 maps 3187:10,15 3262:7 3297:5

3181:22 3211:1 longer 3202:17 lump 3184:19,19,20 3188:1,5 3191:1 maxing 3274:7
3215:7 3218:10 3245:23 3264:12 3185:7,22 3294:6 3295:3 Mayte 3142:14
3221:18 3227:19 3264:17 3265:1 lunch 3267:7 3314:9,9 3146:4
3280:18,18 3290:22 3317:18 3279:10,19 March 3223:21 mean 3164:8
lived 3174:8 look 3165:11 3171:4 luncheon 3228:24 3294:15 3173:15 3185:11
3211:24 3212:6 3171:5,15,20 3279:12 Margie 3224:15 3191:10,21
3213:8,15 3216:18 3172:3,25 3176:14 lwright@burnsch... mark 3224:16 3234:12 3242:14
3224:13 3226:1 3181:8 3183:12,13 3140:14 market 3208:24,24 3242:19 3258:19
3227:8 3183:24 3184:18 Lydia 3140:7 3321:2 3265:18 3272:10
lives 3204:24 3185:13 3191:5 3145:17 3209:10 Markey 3139:10 3281:9,11 3282:18
3219:21 3270:1 3197:21 3203:7 Mason 3193:24 3282:21 3288:2
3272:21 3275:15 3238:15 3243:7 M massive 3235:5 3301:7 3308:1
3321:3 3244:14 3248:9 mad 3167:18 3262:4 3264:25 3311:11 3316:15
living 3210:7 3254:25 3274:1 Madison 3139:11 3265:4 3272:17 3320:25
3221:17 3222:19 3275:25 3281:18 magically 3272:25 3295:19 3300:13 meaning 3149:19
3314:12 3291:13 3300:1,1 magnitude 3250:8 3300:15,18 3159:6 3163:13
local 3175:14 3300:24 3305:20 main 3152:16 3304:18 3177:18 3180:15
3183:18 3201:18 3306:4 3308:12,14 3185:4 3193:21 Master 3139:3 3192:13 3242:12
3294:21 3310:4 3311:6 3315:13 3245:14 3254:1,11 match 3312:4 means 3156:2
localized 3182:21 looked 3146:16,17 3254:13,19,23 matched 3193:24 3181:18 3201:8
3183:18,22,25 3156:12 3158:20 3255:2,5 3311:3 3208:8,14 3236:14
3184:25 3185:8 3165:13 3167:18 maintained 3318:9 materials 3290:9 3287:3 3307:11
3186:12 3199:20 3182:18 3183:11 major 3162:12 math 3158:5 3311:4 3314:10
3199:24 3190:11,14 3281:7 3178:10 3193:25 3177:16 3203:7 meant 3215:9
located 3218:4 3302:3,21 3194:6 3243:9 Matt 3143:14 measure 3187:12
3226:9,14 3255:20 looking 3171:9 makeshift 3217:14 3145:18 3152:14 3191:4 3219:6
3261:19 3277:14 3180:15 3204:21 making 3152:16 3156:20 3157:16 3290:1
3282:16,17 3286:9 3253:16 3310:7 3153:24 3164:9 3158:18 3176:24 measured 3191:14
3289:20 3315:8,9 3170:10 3251:15 3178:14 3182:25 3243:3 3246:6,10
location 3187:19 looks 3170:2 3311:6 malfunctioning 3188:18 3190:12 3251:21 3252:2
3188:21,22 3220:7 3319:14 3311:17 3197:18 3204:7 3254:10 3265:6
3250:1,2,4,20 loop 3176:6 man-made 3165:2 3206:5 3207:17,21 3290:19,22
3281:20 3289:19 lose 3206:16,20 management 3208:6 3223:5 3297:17 3293:13
locations 3182:23 3212:4 3215:9 3318:7,13,20 3303:4 3311:13 measurement
3191:17 3197:1 loss 3215:23 mandate 3148:25 matter 3153:17,18 3251:6
3299:9 3267:25 3320:22 3149:24 3150:5 3169:18 3179:8 measuring 3251:9
LOE 3190:14 losses 3216:6 manner 3149:14 3249:25 3263:9 3251:10
3201:14,15,20,20 lost 3206:8 3215:6 Manual 3149:9 3266:17 3271:9 meet 3233:8 3282:1
3202:5 3216:3,5,9 3216:16 3236:11 3244:5,7 3272:12 3323:7 3295:7
3216:10,14 lot 3168:17,24 3248:10 3272:4,10 matters 3257:11 meeting 3178:6,7,7
LOE's 3215:16 3171:2 3194:4 3272:24 3273:2,10 Matthew 3178:1 meetings 3175:1
long 3148:6 3149:7 3199:17 3207:5 3288:19 3306:18 max 3152:18 3294:22 3314:22
3194:15 3268:4 3227:16 3271:16 3306:20,22 3225:10 3314:23
3270:18 3295:4 lounge 3215:14 3307:13 maximum 3149:15 members 3215:14
3297:14 3301:17 low 3260:2 map 3193:13 3180:25 3181:3,9 3293:21
3306:19 3309:18 lower 3255:2 3197:22 3224:10 3181:11 3208:5 mementoes 3211:21
3312:2,23 3315:4 3315:11 3300:25 3314:11 3209:20 3261:23 3213:1
3314:17

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3344]
memo 3285:25 3209:20 3218:7,17 3195:11,13,22 3226:18 3229:19 3142:15

memorandum 3218:18 3219:4,9 3196:1,4,16 3231:1 3234:3 Nairn 3180:7
3237:15 3241:15 3219:19 3282:3 3197:10,13,17 3236:18 3238:23 3183:24 3184:3
3252:4 3295:11,12 Micu's 3196:10 3198:20 3199:2,3 3239:7,11 3244:19 3191:3,3,10
memory 3162:19,21 3218:12,15,25 3200:5,7,11,25 3246:15,18 3193:23 3194:22
3163:9 3219:15 3201:4 3202:1 3261:16 3283:9 3196:23 3198:19
mention 3265:9 middle 3179:11 3310:20,23 Morton 3268:12 3201:25 3271:5
3269:17 midnight 3214:8 3320:11,17 mother 3220:7 3283:24 3284:3,11
mentioned 3266:15 miles 3156:17 model's 3194:13 motion 3146:19 3285:4,21 3308:8
mentions 3260:20 3192:18 3237:6 modeling 3187:11 3147:15 3239:14 3308:9,21 3310:17
3274:17 3250:5 3300:15 3284:5 3239:18 3305:1 3310:18 3311:10
mere 3259:21 3306:11 models 3191:7,20,21 motions 3147:3,3 3312:12,13,20
3275:11 Miller 3143:15 Moden 3242:15 move 3156:14 3320:16
merely 3262:22 3146:4 3268:2 moderating 3192:16 3184:2 3205:10 Nairn's 3185:13
3265:22 3272:22 3274:25 modern 3152:22 3213:8 3227:9,19 3192:8,22 3193:16
merits 3147:7 3274:25 3177:2,3 3244:18 3258:15 3194:10 3195:22
3230:23 3232:3 million 3278:21 modest 3295:22 3265:3 3266:13 3196:1,4,16
3233:1,16 3258:22 millions 3264:23 modestly 3233:13 3267:7 3281:12,22 3197:10,12 3200:5
3266:25 3287:22 mind 3164:24 modifications 3281:23 3321:3 3282:4 3283:15,22
3288:25 3165:23 3173:6 3152:13 3171:12 moved 3156:12 3284:5 3285:1,24
merits-based 3216:17 3227:23 3253:13,24,25 3215:4 3311:4 3320:9,11
3231:16 3232:10 minimum 3308:20 3254:12 3255:8 movement 3310:3 name 3239:24
3233:12 3251:23 minus 3191:13 modified 3171:11 moving 3217:14 National 3139:10
meteorologic 3196:18 3310:19 3179:11 3253:18 3221:16 3222:25 natural 3141:19
3248:24 3310:23 3311:5 mold 3211:13,20 3224:6 3286:23 3142:4,12 3168:6
meteorological minuses 3247:4 3219:11,12 muck 3205:16 3186:4 3230:14
3170:2 3245:19 minute 3231:4 3224:16 3223:18 3242:14 3258:6
3246:2 3241:25 moment 3256:3 mucked 3224:17 nature 3240:10
meteorologically minutes 3229:7 3269:9 3271:10 mucked-out 3303:1 3306:2
3156:13 3230:2 3265:10 3277:9 3222:22 near 3178:11
meteorologist 3279:12 Monday 3226:17 mud 3219:8 3201:20 3242:2,2
3226:20 misapplication monetary 3266:2 muddy 3227:2 3295:2
meteorology 3157:5 3192:3 money 3207:5 Mugler 3268:2,9 nearly 3148:3
3249:8 3300:7 misleading 3283:24 3213:18,19 3220:6 3270:15 3199:13 3204:3,9
meter 3198:3,4 misled 3315:14 3227:16 3228:4 multifaceted 3213:13
meters 3198:1 misquoting 3254:15 3302:2,9 3194:10 necessarily 3153:11
method 3240:3 misspoken 3283:23 month 3311:20,21 multifactor 3167:1 3153:25 3167:13
methodology mistaking 3301:8,10 months 3211:23 3167:24 3230:7 3169:10 3172:23
3188:23 3202:4 mitigate 3267:25 3212:1 3213:6,8 3231:16 3251:24 3242:14,19
3285:1 3278:24 3215:25 3216:4 3252:10 3287:24 3250:21 3252:19
Metro 3214:6 mitigation 3309:19 3219:13 3223:23 3288:1 3289:1 3256:22 3278:12
microphone 3280:6 3309:21 3310:16 3227:18 3290:23 3295:9 3312:16
3280:11 model 3183:25 morning 3145:4,5,7 multipage 3170:5 necessary 3158:22
microscope 3315:13 3185:13,19,21 3145:16,24 3146:2 multiple 3171:21 3179:19 3264:12
Micu 3147:17,17,18 3191:3,4,8,12,15 3146:5,9,10 music 3222:12 3265:2 3287:12
3148:5 3181:20,21 3191:17,19 3192:3 3195:24 3196:6,15 3290:9 3302:10
3193:12 3195:15 3192:4,8,10,10,22 3209:10,12 3220:1 N necessitated 3305:3
3196:2,4,23 3193:16 3194:12 3220:2 3225:21,22 N 3144:1 3145:1 necessity 3270:22
N.W 3139:11

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3345]
need 3150:11 3286:16 3299:22 3160:7 3172:16 3265:10 3299:25 3304:14 3317:18
3151:22 3169:19 3306:10,20 3307:6 3174:21 3175:17 3300:16 3303:11 oldest 3218:19
3174:14 3176:12 3315:11 3322:2 3176:10 3207:10 3303:18 3304:3 once 3157:22,25
3195:12 3207:22 new 3142:8 3166:21 3223:7 3297:2 occurred 3177:19 3166:9,19 3176:3
3232:2,14,21 3205:17 3208:13 3304:12,16 3178:10 3199:14 3197:23 3216:8
3233:7,11 3256:1 3211:7 3218:3 3307:14 3308:11 3229:21 3237:5 3228:6 3260:18
3257:10 3261:13 3239:13 3240:25 3309:20 3313:10 3247:15 3250:4,13 3262:4,9 3276:17
3266:16 3267:16 3245:11 3283:4 notwithstanding 3253:14 3259:24 3303:11
3280:15 3291:8 3291:21 3292:2,15 3224:12 3264:7 3265:16 one-flood 3261:15
3302:4 newspaper 3294:21 nth 3191:9 3272:18 3295:18 one-foot 3196:19
needed 3320:6 nice 3214:18 number 3145:8 3304:1 3316:1 3320:8,12,13
needs 3172:1 3228:1 3218:11 3148:23,23 3317:15 3318:23 one-hour 3183:10
3258:1 3281:3 nine 3198:3 3212:1 3152:17,19,19 3319:1,2,6 3183:14
3316:12 no-project 3193:2 3157:16 3160:3,4 occurrence 3149:16 one-in-50-year
negative 3291:5 3281:14,17 3282:6 3176:24 3188:20 3158:25 3240:17 3241:19
neighborhood 3282:8,10 3284:2 3190:14 3206:3 occurring 3178:4 3242:9
3174:4 3176:12 3284:4,9 3320:17 3227:23,23 3271:7 3260:23 3261:9 one-in-500 3242:6
3197:12 3198:12 no-win 3268:21 3284:4 3297:18 3265:5 one-time 3229:20
3198:18 3204:19 3269:5,21 numbers 3147:18 offensive 3181:7 3296:2 3298:19,20
3204:22 3211:2,10 non 3310:6 3283:5 3311:5 offer 3238:8 3298:25 3322:3
3213:2 3217:20 nonactions 3263:21 offered 3286:4 ones 3185:12 3300:5
3218:24 3221:3 nonexistent 3281:13 O office 3142:17 onward 3308:17
3226:23,25 3284:6 nongovernment-o... O 3145:1 3143:4 3146:7 3309:9
3315:18 3177:9 Oak 3319:13 3148:13 open 3214:9 3269:2
neighborhoods noon 3195:23 oath 3175:4 3196:11 official 3323:6 3278:9 3312:1,1,7
3173:25 3174:1 3217:5 3309:14 oh 3160:1 3162:20 3312:24
3175:21 3184:5 normal 3208:5 obfuscate 3271:1 3169:25 3170:7 openable 3153:22
3193:4,9 3197:15 3234:20 obfuscation 3175:3 3171:1,4 3172:16 opening 3176:24
3308:19 normally 3234:19 objective 3149:11 3174:21 3175:18 3180:19 3297:18
neighboring 3261:25 3176:11 3293:14 3181:8 3194:13 operate 3149:13
3168:17 north 3162:1 3199:4 3321:11 3195:2 3200:25 3273:3
neither 3239:9 3257:7,19 3261:1 obligation 3314:11 3214:21 3223:1 operated 3171:24
net 3204:4 3256:10 northern 3154:1,24 observations 3239:15 3274:8 3208:9 3270:7
3269:12 3275:9 3276:9 3189:15 3191:2,15 3300:13 3304:12 3274:11 3301:17
3279:1,2 note 3147:19 3148:2 observed 3186:13 3306:23 3305:19,20
netted 3269:11 3155:1 3252:11 3191:17,18 3192:5 okay 3151:23 operates 3234:10
never 3159:13,14 noted 3147:15 3192:6 3152:6,14 3173:12 3268:10
3160:3 3161:20 3183:3 3195:10 obtained 3304:9 3182:15 3183:7 operating 3148:24
3178:16 3197:5 3237:6 3242:18 obvious 3207:8 3184:24 3195:12 3150:7,7 3152:25
3203:5,13,14 3243:19 3285:23 3313:21 3316:3 3204:4 3221:16 3155:17,21
3215:4 3217:1,2 3287:6 obviously 3165:2 3233:3 3255:15 3160:12 3161:7
3217:19,23 notes 3278:21 3198:15 3243:9 3258:13 3269:19 3166:3 3208:5
3218:17 3221:25 3285:10,23 3259:11 3305:13 3280:14,19 3305:5
3223:11 3225:3 notice 3177:13,23 3313:13 3302:15,21 operation 3149:21
3228:1 3234:22 3207:16,19 occupy 3150:16,17 3304:13,23 3234:19 3243:12
3250:8 3252:8 3291:21 3314:5 3151:9 3308:12 3311:5,20 3269:21 3273:17
3253:4 3255:4,5 notification 3292:1 occur 3157:22,25 old 3214:21 3226:2 3275:9
3257:4,14 3272:18 notion 3159:7 3235:4,24 3237:7 3255:6 3298:19 operational 3273:3
3248:7 3259:20

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3346]
3274:21 overfilled 3194:3 3271:24 3273:21 parties 3215:14 performed 3262:25

operations 3149:19 overflow 3162:3 3275:21 3276:2,23 3230:9 3239:2 period 3154:7
3149:25 3234:21 3201:18 3286:6 3293:12 3259:12 3260:11 3186:19 3210:23
opinion 3272:8 overflowing 3306:25 3317:4 3267:9 3290:1 3223:23 3235:12
oppose 3147:21 3162:10 3318:4,10 3319:10 partly 3207:24 3246:11 3260:10
opposite 3191:3 overflows 3259:16 3320:10,16,19 parts 3163:12 3262:22 3264:2,12
3277:17 overlap 3230:21 pages 3201:15 3247:12 3264:14,17 3290:3
opposition 3239:18 3233:18 3283:8 3286:11 pass 3154:6 3250:14 3290:3
3241:5 overpredict 3320:12 paid 3203:13 3207:5 3270:23 periodicity 3159:9
option 3287:16 overpredicting 3221:7 3226:6 passed 3154:24 3169:6,24 3298:22
options 3273:23 3284:1 paragraph 3158:20 3207:12 3217:3 3299:17
3274:20 overstated 3192:13 3319:9,15 3291:17 3297:7 permanent 3155:22
oral 3147:15 3193:17 3194:7 paralegals 3148:12 pattern 3318:6 3159:12 3166:7,16
ordeal 3212:5 3195:9,16 paramedics 3214:2 Patty 3268:13 3224:2 3259:15
order 3146:24 overtop 3201:18 parents 3227:9 pay 3211:5 3223:21 3266:22 3267:4
3158:22 3196:9 overtopping Parish 3246:21 3265:19 3296:2 permanently 3224:5
3203:25 3273:24 3201:23,24 3247:2 3281:3 paying 3305:13 3266:22
3275:4 3281:2 overtops 3175:8 Park 3218:7 3219:1 PDF 3238:17 3319:9 person 3161:2
3283:10 3319:22 owned 3210:1 3219:1 3319:15 3194:19,20 3197:3
ordinance 3175:14 3218:7 3236:1,15 parking 3168:17,24 PDX 3177:4,5 3205:23 3208:15
ordinary 3280:23 3236:22 3243:25 Parsons 3216:18 3197:18 3309:15,15
original 3160:15,17 3244:10 3245:6 part 3150:9 3152:8 peace 3216:16 personal 3206:7
3165:2 owner 3262:20 3152:9 3154:1,2 3227:23 3215:6 3221:11
originally 3161:14 3263:5 3298:16 3154:24 3155:20 peak 3189:17 3224:4
3163:11 owners 3164:13 3155:22 3169:1 3194:3 3200:19 personally 3174:1
Oscar 3218:25 3172:5 3203:13 3172:6 3176:4 3285:8 perspective 3148:17
ought 3180:6 3205:3 3263:9,10 3186:3 3203:13 peaks 3200:19 3155:4,13 3176:23
outflow 3152:17 3268:25 3270:1 3204:1 3226:5 pegs 3188:15 3193:14,14
outgrant 3286:1,3 3272:1 3290:15 3240:10 3243:11 penny 3203:14 3267:14
outgrants 3230:5 3298:11 3248:8 3258:21 people 3148:5 perspicacity
3281:16,21,22 owners' 3202:24 3262:14 3278:7 3174:7,25 3175:17 3321:22
3282:1 3286:5,7 ownership 3260:1 3279:3 3285:8 3175:25 3178:5 photo 3213:24,25
3286:15,18,18,22 3262:21 3264:4 3289:12 3293:1 3204:23 3205:3,9 3215:17
3287:3,7,7,13 3295:3 3306:10 3205:10,20 photograph 3212:18
3307:21 3308:1 P 3309:13,16 3206:15 3208:1,14 3218:12,20,22
3309:12 3310:6 P 3145:1 3311:24 3313:25 3211:24 3216:12 3219:5 3221:12
outlets 3152:15 p.m 3217:8 3279:19 3317:12 3318:14 3223:7 3264:23,24 3222:16
outlined 3232:14 3279:19 3280:2 3320:23 3265:1 3274:3 photographs
outreach 3321:13 3322:8 particular 3176:9 3277:4 3278:21 3265:13
outside 3222:18 package 3298:5 3194:21 3242:13 3280:4 3297:24 phrase 3244:21
3290:17 3307:13 page 3144:3 3247:10 3256:11 3304:7 3309:11 3252:17
3308:19 3312:4 3147:16 3149:9 3257:8 3264:19 3310:14 3313:4,18 physical 3172:24
outward 3183:23 3156:20,21 3268:18 3277:9,23 3313:21 3314:22 3204:25 3205:1
overall 3154:25 3157:16 3158:19 3282:23 3283:1,12 3314:23,25 3321:3 3210:5 3216:6
3161:15 3163:10 3207:20,20,22 3291:14 3298:22 people's 3193:11 3217:22 3245:12
3207:11 3292:14 3208:3 3235:18 particularly percent 3206:11,13 3246:2 3253:24
overarching 3150:6 3238:13,17 3148:12 3230:4 3209:2 3288:10,11
3186:20 3253:15 3254:25 3261:19 perfect 3200:3 physically 3149:20
3263:15 3271:6,7

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3347]
3235:4 3237:7 3148:11 3173:14 3259:17 3260:1,25 3280:3 3281:18 3191:10 3206:2
3239:4 3246:16 3177:21 3181:8 3262:3,21 3264:1 3297:18 3306:25 3228:19 3229:17
3286:8 3298:13 3209:11,13 3210:1 3265:12,18 3266:1 3307:3 3230:7 3242:25
pick 3188:20 3216:20 3218:8 3266:6,16 3267:1 pled 3243:10 3254:2 3283:18
picked 3187:16 3219:25 3228:17 3267:14 3271:6 plotted 3177:3 3298:17 3307:23
3227:15 3284:15 3229:2 3231:20 3272:4,23 3273:22 plus 3151:11 3152:7 police 3213:13
pickle 3192:17 3234:3,24 3235:9 3277:11 3278:13 3163:8,8 3191:12 3214:12 3230:1
picture 3195:23 3238:8 3239:7,20 3279:3 3282:12 3196:18 3236:4 3268:7,16 3270:13
3222:14 3224:3 3240:9,15 3241:22 3286:24 3287:23 3310:19,23 3311:5 3270:21 3272:10
3299:10 3242:25 3243:6,7 3288:19 3289:5,9 3319:18 3273:7 3274:23
pictures 3311:10 3243:10 3244:24 3289:16,23 3293:6 pluses 3247:3 3275:16 3304:23
3318:25 3246:15 3249:17 3296:4,13 3305:24 point 3143:6 3304:24 3316:23
pile 3205:18 3249:19 3251:17 3311:14 3317:4 3146:24 3147:15 3319:22
3227:13 3252:6,7 3253:2 3320:13 3321:18 3148:20 3149:23 pond 3169:3
piles 3205:16 3213:3 3253:23 3254:14 plan 3149:12 3160:3 3150:6,6 3151:22 pool 3150:16 3153:4
pipe 3285:11 3258:3 3259:7,13 3160:9,10 3165:3 3152:2 3154:13 3154:4,25 3155:5
3311:23 3260:8 3261:6,11 3179:12 3186:4 3157:5 3158:17 3175:23 3177:22
pitch 3202:16 3262:13,18,24 3239:23,24 3240:1 3161:12 3162:2 3181:11,13,18
3209:5 3234:4 3263:14,18,24 3241:2 3273:19 3163:1,20 3164:8 3184:11 3186:25
3261:12 3264:10,17 3265:2 3275:25 3302:7 3172:7 3173:13 3187:23 3189:23
place 3139:11 3266:18 3267:3 3305:15 3307:14 3175:20 3178:20 3190:19,20
3174:3,6,12,13,16 3271:1,23 3273:1 3320:3 3193:16 3197:9 3199:22 3201:22
3175:22 3176:17 3273:14 3274:22 planned 3159:20,24 3200:4 3205:7 3201:25 3205:1
3185:1 3200:6,6 3275:18 3277:1,13 3210:10 3228:9 3206:25 3207:4,10 3207:14,24 3208:3
3201:5 3221:21 3277:18,18,21 3235:10 3271:25 3217:9 3220:13 3209:18,19,23
3223:2 3234:4 3278:16,17,17,18 3307:18 3230:22 3233:4,17 3215:24 3225:7,11
3246:12 3256:9 3281:25 3283:8,14 planning 3160:4 3242:10,16 3227:7 3235:20
3258:4 3305:6,16 3284:12 3285:16 3240:18 3241:1,10 3244:18 3246:5 3236:2,15,24
3306:19 3315:7,7 3286:2,15 3287:25 3241:12 3247:16,18 3244:11 3245:8
3315:19 3288:7 3290:9 plans 3161:20 3250:16 3253:14 3254:7 3256:15,21
placed 3149:18 3293:8 3294:24 plant 3315:11 3254:11 3257:8 3257:4 3276:7
3265:16 3295:7,24 3297:25 plat 3315:4,5,9 3258:23 3264:10 3294:15 3314:12
placeholder 3252:11 3298:6 3316:8 plats 3294:13 3266:14,14,21 pool-induced
places 3184:18 3318:14,24 3315:3 3267:8 3270:25 3181:2
3274:7 3319:23 3321:14 play 3179:15 3196:4 3271:1 3272:8 pooled 3205:2
placing 3264:15 Plaintiffs' 3176:15 3309:23 3313:8 3273:15 3277:11 pools 3215:13
3274:6 3290:7 3177:1,25 3180:20 played 3179:17 3278:15 3279:10 3222:6 3234:20,22
plaintiff 3143:14 3182:25 3204:11 3196:8 3214:14 3283:23,25 3285:7 3254:24 3255:2,3
3175:4 3210:3 3220:16 3229:14 3223:10 3286:24 3287:2 3272:18 3289:22
3230:12 3252:1 3229:22 3232:11 playing 3316:25 3290:5,18 3292:16 poorly 3227:3
3258:16 3259:25 3232:13 3233:5,6 Pleasant 3142:6 3304:23 3311:13 Popavicio 3206:24
3284:7 3290:7 3233:8 3234:17 please 3145:3,10 3313:1 3316:3 Popovicci 3217:3,10
Plaintiff's 3173:18 3235:8 3238:9,18 3146:14 3150:11 3320:18 Popovici 3216:18
3179:16 3274:1,2 3239:6,11,18 3156:21 3157:15 pointed 3177:10 3217:17,17,22,24
3285:12 3246:7,9,23 3176:25 3178:1 3202:19 3285:3 Popovicis 3216:19
Plaintiffs 3140:3 3249:11 3251:12 3179:15 3187:13 pointing 3319:9,10 3216:24 3218:6
3145:13 3146:12 3251:14,20 3195:21,21 3196:3 points 3157:11 portfolio 3206:18
3146:19 3147:5 3254:11 3255:1 3204:7 3229:9,13 3167:8 3173:22 portion 3191:11

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3348]
3298:10 precise 3191:8 prevent 3149:16 3216:15 3259:17 3282:5 3286:5

posed 3153:13 3284:5 3169:3 3203:25 3278:7 3292:3 3309:3
3230:20 precisely 3161:10 3267:25 3268:11 3312:9 prone 3289:19
poses 3150:20 3286:13 3287:12 3296:6 problematic proof 3146:13
position 3153:2,10 precludes 3316:24 prevented 3177:11 3311:18 3209:14 3260:23
3164:17 3192:9 predict 3241:24 3204:9 3263:20 problems 3270:5,20 3282:2 3295:8
3239:8 3243:5 3304:2 previously 3164:21 procedures 3305:5 propagates 3320:14
3246:7,9 3259:14 predictability 3305:8 3320:3 proper 3156:14
3277:17 3288:20 3164:24 3165:8 price 3292:5 proceed 3229:10 3265:5
3290:24 3294:1,5 predictable 3168:14 prices 3208:20 3280:20 3307:14 properly 3229:22
3296:9 3304:21 predicted 3304:1 3291:25 proceedings 3322:8 3314:5
3319:12 Predicting 3259:19 pride 3213:17 3323:7 properties 3145:11
possession 3224:15 prediction 3320:17 primary 3149:11 process 3240:11 3149:6 3152:1,24
3298:14 predictive 3192:1 3226:1 3246:11 produced 3240:21 3154:9 3180:20
possessions 3174:17 3196:19 principles 3245:18 3263:13 3270:8 3181:1,17 3182:20
possibility 3170:18 preempt 3262:21 3246:2 profile 3188:2 3184:17 3187:21
3235:1 3249:18 3263:25 prior 3176:21 profiles 3187:15 3197:2 3203:3,20
3251:18 3255:25 preempted 3202:24 3188:18 3201:9 program 3192:12 3204:17 3206:25
3266:19 3293:7,22 preexisting 3256:8 3221:8 3222:1 project 3149:2,3,6 3209:18,21,22
3294:7,10,16,18 preferred 3216:10 3223:17 3224:14 3149:18 3152:3 3216:14 3217:1
3294:20,23 3321:4 preflood 3212:2 3311:21 3161:16 3163:11 3222:3 3232:25
possible 3149:15,20 pregovernmental private 3150:8 3170:7 3180:16,17 3234:5,11,13,22
3156:8 3158:14,15 3308:2 3151:20 3152:1,24 3208:9 3234:8,10 3235:22 3246:19
3239:4 3242:13,18 preliminary 3155:21 3156:3 3235:25 3236:14 3251:18 3252:7,8
3246:17 3321:16 3206:12 3234:2 3160:17 3164:20 3237:3 3239:25 3253:3 3258:4,5
possibly 3199:21 3240:10 3267:22 3166:18 3169:2 3240:4,19 3241:2 3258:11,12
3294:25 preparation 3179:13 3187:3 3243:9,12,14 3259:20 3262:3
Post 3142:17 3321:25 3190:21 3192:25 3244:13,16,20,21 3263:3,8 3264:3,3
post-dated 3188:5 preparedness 3203:3,18 3263:8 3244:25 3245:12 3264:9,16 3265:7
post-trial 3229:15 3307:5 3268:1 3295:18 3245:23 3246:3 3265:15 3267:5
3229:16 3242:24 Preseault 3173:9 3296:7 3298:11 3248:3,8,12,14,16 3268:1 3269:3,4
3244:15 3248:19 present 3143:13 3301:11,19 3249:5,6 3253:13 3269:11 3271:10
3252:4 3259:14 3303:14 3304:17 3305:3 3254:7,9 3262:25 3271:11 3272:13
3268:23 3283:8,15 presentation 3322:6 probabilities 3266:7 3272:19 3272:21 3274:14
3286:11 3293:5 presented 3178:18 3242:20 3260:10 3274:11 3280:22 3275:15 3277:7,14
3295:11 3320:10 3223:16 3237:21 probability 3237:25 3281:7 3286:8,9 3277:15 3278:10
3321:12 3322:1 3269:21 3291:19 3241:3 3259:23 3296:3 3302:5 3279:3 3281:13,23
potential 3178:17 3316:10 probable 3158:16 3303:3,12,12 3282:3,10 3286:14
3291:3 3298:4 preserve 3318:8,20 3158:17 3168:6 3309:6,10,10,13 3286:20,22 3289:3
power 3230:1 preserve.' 3318:13 3230:14 3242:15 3309:16,18 3310:8 3289:6,11,22
3267:24 3268:7,16 President 3276:14 3258:6 3303:9 3310:11,11 3290:8,16 3293:11
3270:13,21 pressed 3235:7 probably 3148:16 3319:11 3294:1,25 3295:1
3272:11 3273:7 pressure 3163:12 3161:13 3168:9 project- 3224:19 3295:5,18 3296:7
3274:23 3275:16 presumably 3162:5 3174:12,17 project-induced 3298:11 3301:12
3298:9 3304:23,24 3163:1 3178:19 3184:16 3223:9 3225:4,15 3305:24 3306:6
3316:23 3319:22 pretrial 3308:25 3209:2 3218:5 3286:17 3310:11 3315:1,18
powers 3275:2 3321:25 3224:22 3308:16 projects 3241:10 3316:15,21
precedent 3279:5 pretty 3251:25 problem 3188:22 3251:13 3276:23 3321:15

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3349]
property 3150:9 property's 3218:4 3277:4,5 3278:16 3307:16 3314:4 3154:1 3188:14
3151:20 3155:22 property-specific 3278:24 3279:4 putting 3152:13,15 3194:10 3269:14
3164:13,21 3291:13 3293:21,22 3294:8 3166:17 3176:16 quotation 3318:15
3165:16 3166:9,13 proposal 3157:11,18 3294:19,22 3295:4 3178:9 quote 3149:2,10
3166:18 3169:2,2 3239:23 3297:25 3298:2,14 PX 3237:16 3238:16 3159:4 3277:1
3172:5,7 3177:7 proposals 3274:9 3314:4,13,21 3241:15 3285:24 3291:23 3301:19
3177:21 3179:14 proposed 3240:3 3321:13,14 3307:25 3310:21
3182:23 3184:8,14 3241:1 3274:5 publication 3245:20 Q 3313:5 3318:21
3187:3 3188:15 proposition 3261:17 publicly 3294:6,17 quad 3314:9,11,17 quoted 3156:5
3190:21 3193:1,4 prospect 3260:19 publishes 3249:3 quality 3315:15 3316:18 3318:14
3199:6 3202:24 protect 3149:20 pull 3238:16 3301:6 Quebedeaux quoting 3304:25
3203:8,9,19 3268:5 3270:18 3315:12 3165:13 3166:5,14 3319:12
3205:2,4,4,7,9,11 3272:1,20 3279:4 pulled 3219:14 3298:21,22
3205:13 3206:1,7 3297:15 3307:19 3318:24,24 question 3146:23 R
3206:23 3207:3,14 protected 3230:13 Purcell 3143:5 3150:20 3151:5 R 3145:1
3207:18 3208:1,25 3271:17 3305:21 3146:8,9 3154:10,18 rain 3150:15
3210:1,2,4,16,24 protecting 3234:11 purchase 3161:2 3155:25 3156:13 3159:18 3184:21
3211:11 3213:17 3269:25 3165:25 3220:6 3157:15 3158:13 3184:22,22,24
3213:20 3215:6 protection 3149:4 3232:13 3159:9 3160:15,21 3186:19,19 3187:1
3216:15,20 3217:2 3234:9 3257:1 purchased 3163:7 3165:4,7 3169:8 3192:18 3199:17
3217:22 3218:1,5 3286:17 3166:2 3220:4 3171:2 3172:1,4 3199:18,19
3219:19 3220:24 protector 3212:21 3221:17 3226:11 3176:6,21 3177:14 3296:21,22,23
3221:11 3223:1 proud 3305:19 3226:16 3301:24 3177:18 3185:16 3297:7,11 3299:7
3224:4,22 3225:13 proudest 3206:19 purchasing 3246:17 3188:12 3203:15 3299:10,11,22
3225:17,19 prove 3174:22 purple 3197:25 3230:19 3235:8 3300:2,13,15
3226:10 3230:13 3181:8 3196:10 3200:15 3242:11 3243:18 rain's 3297:2
3232:11 3235:1 3235:9 3262:19 purpose 3148:23 3247:17 3248:11 rained 3186:22
3236:2 3245:7 3281:2 3149:2 3223:2 3258:22 3264:7 rainfall 3150:25
3249:18 3252:1 proved 3225:5 3298:15 3281:2 3301:15 3157:21,23 3162:2
3258:17 3260:1,25 3297:4,11 purposefully 3166:8 3303:25 3310:22 3186:11 3192:10
3261:19 3262:20 proven 3166:16 purposes 3173:15 3317:6 3319:20 3192:19 3238:4
3263:5,9,10,20 3168:1 3196:22 3245:1 3292:18 questioning 3238:22 3240:22 3259:3
3264:1,5 3265:11 proves 3179:7 pursuing 3295:24 3245:5 3253:6 3284:14,18,22
3268:3,25 3269:1 provide 3215:11 pushed 3199:1 questions 3160:14 3285:9 3295:20
3269:1 3270:1,17 3234:9 3286:14,16 3314:8 3180:3 3202:11 3299:3 3300:11,16
3272:1 3275:3 provided 3256:25 pushing 3197:15 3204:20 3209:4 raining 3217:12
3278:4,5 3282:12 3266:3 3291:3 put 3161:17 3163:12 3220:10 3221:13 rains 3159:14
3282:14,16,19,22 3316:20 3167:16,17 3225:18 3228:11 3183:15
3283:1,5,12 provides 3282:11 3168:24 3185:19 3228:18 3247:14 raise 3153:4
3286:9,23 3288:17 3295:9 3185:21 3186:11 3249:13 3283:17 3200:18,19
3289:16,17,23 proving 3302:18 3192:9 3193:6,10 3285:16,17 3218:11 3223:2
3290:4,15,20 proximity 3280:6 3198:14 3202:1 3290:17 3254:13
3291:15 3292:23 prudent 3229:11 3203:24 3207:17 quickly 3148:8 raised 3152:21
3298:14 3301:19 3237:8 3213:4 3214:6 3167:7 3188:12 3171:17 3254:17
3304:17 3314:16 public 3178:7 3222:7 3252:11 3286:20 3319:21 3316:11,17
3314:16 3317:25 3216:21 3252:6 3256:9 3274:2 quiet 3212:7 raises 3200:21
3318:11 3319:3 3268:5,11 3270:19 3298:4 3301:11 quintessential 3292:16
3320:22 3272:21 3275:5 3305:5 3306:25 3298:8 raising 3246:3
quite 3146:20 3253:25 3254:22

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3350]
Ranch 3211:2 3189:25 3195:2,4 3199:16 3206:4 recurring 3259:10 reject 3167:2
3221:25 3195:8,20 3196:21 3221:6 3224:25 3259:16,19 3260:9 3229:14 3233:7
Randy 3206:4 3197:8 3223:6 3225:9 3236:6 3260:13 3261:3,7 3287:23 3295:10
range 3322:2 3224:2 3231:4 3255:16 3261:13 3288:12 3321:18
rapidly 3220:12,13 3234:25 3243:5,8 recalls 3156:17 recurring-type rejected 3158:12
rare 3237:13 3239:9 3246:12 3264:7 3300:20 3266:22 3229:23 3263:19
3266:8 3270:3 3282:1 receded 3221:2 red 3153:13 3156:2 3296:9,13 3306:17
rarity 3237:22 3283:24 3285:6 received 3204:16 3183:13 3197:20 3314:5
3317:13 3295:17 3296:20 receptions 3215:15 3198:21 3199:8,9 rejecting 3157:18
rate 3191:12 3298:12 3304:14 recess 3229:7,8 3224:7 3245:15 3158:1
3224:10 3283:22 3309:23 3314:10 3279:19 3280:14 relate 3157:11
3310:19,22 3320:7 realtor 3221:19 reclaimed 3205:25 reduce 3278:24 related 3319:13
raw 3291:10 reason 3163:24 recognition 3179:3 3287:8,16 relates 3241:1
re-evaluated 3178:21,22 3297:21 reduced 3269:2 relative 3199:7
3171:19 3253:22 3220:21 3254:18 recognize 3148:9,13 3273:20 3309:1
3254:4 3290:5 3291:8 3173:23 3174:15 reduces 3262:23 release 3274:13
re-open 3239:14 3295:9 3299:15 3265:14 3318:16 3265:23 3285:14
3240:9 3310:5 recognizes 3172:17 reduction 3292:5 released 3277:19
re-urge 3173:10 reasonable 3165:6 Reconnaissance 3296:3 releases 3155:9
reach 3187:24,24 3172:20,22 3173:7 3294:17 refer 3147:9 3273:20 3274:18
3212:14 3258:22 3205:23 3231:17 reconvene 3228:23 3303:21,21 relevant 3154:3
3283:10 3287:22 3232:11 3248:20 3279:12 reference 3147:17 3155:11,13 3157:9
reached 3255:4,5 3251:23 3252:7,15 record 3146:20 3240:25 3241:11 3170:1 3195:8
3257:4,14 3262:7 3252:18,22 3253:2 3147:4,5,20 3306:23 3314:13 3230:7 3242:20
3262:9 3283:11 3253:7 3280:6 3148:2 3169:8 referenced 3269:25 3246:13 3247:1
read 3149:10 3293:2,12,18 3174:24 3176:8 referred 3319:8 3252:25 3253:22
3160:14 3186:16 3314:2 3321:9 3210:2 3222:9 refers 3241:12 3254:4,19 3268:16
3197:24 3231:11 reasonably 3235:16 3235:13 3239:10 3319:16 3288:5 3292:17
3286:3 3297:22 3236:4,9,16,25 3239:14 3240:9,22 reflected 3224:2 3293:4 3314:7
3310:21 3244:2,11,12 3295:3 3299:2 reflects 3222:10 reliable 3216:8
readiness 3307:5 3245:8,24 3247:21 3310:20 3311:16 3284:24 relied 3284:12
reading 3285:5 3247:24 3260:17 3311:16 3312:24 regard 3188:8 3293:20
ready 3167:15 3302:13,19 3314:22 3317:3 3230:25 3251:20 rely 3210:10
3267:15 3303:18 3320:6,20,24 3273:19 3282:2,22 3228:18 3260:11
real 3226:10 reasons 3171:7 3321:11 3283:11,14 3261:16 3283:17
3265:18 3305:14 3172:12 3206:14 record-setting 3285:24 3289:6 relying 3211:25
3307:24 3308:23 3206:14 3229:15 3238:4 3293:18 3256:21,22
3309:15 3311:6 3247:14 3264:21 recorded 3259:3 regarding 3257:25 3264:18 3315:16
3321:2 3286:4 3295:7 3296:8 3273:16 3284:13 remain 3244:24
real-time 3305:12 3296:11,12 recording 3323:6 region 3211:4 remainder 3228:19
reality 3195:13,25 rebuild 3205:24 records 3204:3 3237:20 3238:20 remained 3236:21
3271:13 3215:5 recovering 3213:22 3250:21 3300:2 3256:12
realized 3194:18 rebuilding 3205:20 recovery 3316:24 regular 3178:8 remaining 3295:12
really 3151:22 rebut 3207:8 3291:3 recuperating 3200:5 remains 3222:22
3155:24,25 3157:4 3291:8 3213:23 regulation 3149:13 3283:12 3285:18
3164:8 3171:2 recall 3177:1 3178:2 recur 3260:17 3236:11 3244:5,7 remarkable 3177:11
3175:3 3183:4 3181:21 3184:15 recurrence 3241:13 3248:10 remarks 3245:13
3186:20,22 3190:13 3196:9 3261:10 rehash 3169:6 remediate 3205:11

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3351]
3219:12 3265:19 3290:10 require 3178:10 3275:10 3277:15 results 3201:17

remediated 3219:18 3290:16 3296:2 3272:22 3292:8 3277:16,20 retain 3161:22
remedy 3230:17 repeat 3293:11 3305:12 3281:10,13,24 3208:10 3262:1
remember 3159:25 3309:13 required 3207:25 3286:21 3301:9
3162:17 3171:10 repeated 3284:7 3260:24 3275:18 residence 3226:1 retained 3166:17
3173:25 3180:18 3288:17 3318:18 requirement RESOURCE 3271:15 3278:5,7
3183:19 3186:5 repeatedly 3234:23 3258:15 3273:6 3141:19 3142:4,12 retaining 3278:4
3192:11 3193:1,20 3234:24 3262:2 3319:21 respect 3220:23 retention 3161:23
3193:22 3197:4,6 3263:19 3277:1 requires 3180:14 3258:11,12 3282:3 3163:17
3204:13 3300:23 3294:24 3207:13 3230:11 3295:13 3303:3 retire 3211:6
3301:16 3308:9 repeating 3259:22 3258:16 3259:21 3316:14 retired 3210:7
3312:2 replace 3210:21 3262:18 3270:14 respecting 3162:6 3213:12
remembers 3188:7 3215:6 3270:15 3292:22 3232:24 retirement 3210:9
3189:4 3315:4 replaceable 3304:12 requiring 3292:10 respond 3158:10 3210:11 3226:8
remind 3305:18 3304:15 3317:14 rescue 3212:16 3229:18 3289:4 retrieving 3215:1
reminded 3215:1 replaced 3211:19 3214:5 3305:2 return 3212:1
remote 3235:1 3212:25 3215:20 reserve 3203:4,12 responded 3316:20 3237:17 3242:11
3239:5 3242:13,21 replete 3294:4 3203:20 responders 3178:8 3252:9 3265:9
3261:9 3266:19 3321:12 reserves 3166:9 responds 3274:9 3308:2
remotely 3262:10 reply 3231:1 3234:3 reserving 3166:12 response 3194:10 returned 3212:13
remove 3210:19 3239:6 3246:14 reservoir 3145:8 3242:23 3249:12 3214:10 3218:25
3213:22 3219:9 3249:12 3253:15 3149:13 3150:9 3274:12 3296:17 3219:1,4 3320:21
3227:10 3281:15 3253:19 3255:1 3162:11 3178:13 responses 3243:3 returning 3295:17
removed 3163:12 3261:11,15 3185:6 3193:25 3283:13 3319:20 revealed 3293:22
3205:13 3211:18 3263:15 3271:24 3194:3,5 3203:13 rest 3270:25 3294:1 review 3240:11
3211:20 3212:25 3273:14 3286:6 3207:15,23,25 3295:13 reviewed 3186:16
3215:23 3216:10 3287:2 3293:12 3208:4,5,8,21 restored 3225:17 3253:21 3254:3
render 3287:14 3296:17 3210:17 3218:4 restrict 3152:17 reviewers 3240:13
rendition 3298:19 report 3149:3 3222:6 3224:9,23 3171:16 Richard 3306:19
renovate 3210:22 3152:3 3170:7 3225:7 3226:15 result 3156:4 ride 3212:16
renovating 3213:18 3180:23 3183:1 3236:11 3244:5,6 3165:19 3168:6,14 Ridge 3159:16
renovations 3223:19 3190:11 3200:25 3248:9 3274:7 3170:6 3180:15 3164:22 3167:8,11
3223:21 3201:1,3,14 3278:19 3287:11 3187:10 3199:13 3167:17,23 3168:8
rent 3210:23 3202:5 3235:14 3289:20 3292:24 3201:18 3204:10 3168:15 3173:4
rental 3210:10,24 3238:15,18 3294:3 3302:11 3210:14 3215:19 3202:19,22
3213:16 3216:9 3241:25 3244:4 3303:20 3319:13 3216:2 3218:14 3209:14 3230:11
renter 3216:10 3245:20,21 3249:3 3319:14,17 3230:14 3235:5 3230:25 3231:8,22
reopen 3215:25 3254:5 3260:5 reservoir's 3289:13 3242:13,13,15 3231:24 3232:5,7
repair 3205:24 3278:20 3283:4,22 reservoirs 3139:5 3246:23 3256:10 3232:15 3233:6,9
3213:7 3294:17,19 3302:5 3140:4 3149:12,13 3256:11 3258:7 3233:11 3234:1
repairable 3265:11 3303:3,5 3311:19 3160:18 3234:18 3265:3,4 3269:23 3258:15,16
3265:16 3266:8 3312:4 3319:11 3235:10,20 3275:9 3288:18,20 3262:14,18
3296:5 3317:16,17 3320:9 3236:23,24 3291:25 3292:5 3265:22 3266:17
repaired 3215:20 reported 3183:15 3239:22 3240:1,8 3308:13 3313:14 riding 3223:11
3304:19 3319:6,7 3305:20 3311:17 3242:2 3244:1,10 3313:21 3320:23 right 3146:25
repairing 3224:19 Reporter 3139:25 3245:7 3253:18,20 resulted 3210:5 3147:23 3151:2
repairs 3264:12,20 reports 3285:25 3261:24 3262:2 3266:8 3296:4 3152:7 3154:12
3264:20 3265:3,14 request 3321:17 3263:18 3273:20 resulting 3218:5 3156:10,18,22

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3352]
3161:14 3162:20 3172:13 3174:20 3284:3 3295:24 3239:10,11 3185:2,23 3192:23

3166:10 3167:20 3175:6 3177:8 3298:20 3320:12 3255:19 3306:16 3197:8 3217:15
3169:25 3171:7,8 3223:8 3254:4 runway 3225:1,14 3308:17 3319:5,5 3220:19 3229:25
3171:15 3173:5 3276:20 3294:15 rupture 3214:6 saying 3180:1 3230:15 3253:22
3175:16 3176:2 3296:3 3297:21,21 rural 3314:16 3181:8 3195:3 3258:21 3262:14
3178:20 3180:10 3306:8 rushing 3159:23 3208:23 3234:25 3272:9 3284:10
3182:11 3184:19 risk-takers 3174:19 3189:19 3250:23 3252:22 3286:15 3311:9
3185:1,20,23 risks 3253:23 RV 3215:7 3278:1 3296:21 secondly 3319:23
3186:9 3189:2,7 3294:9,11 3301:5 3302:17 secretary 3215:16
3189:22 3190:4 River 3261:22 S 3305:7 3309:18 section 3175:19
3191:13 3192:17 riverine 3180:6 S 3142:5 3145:1 3312:5 3205:19 3207:18
3193:10 3194:25 3185:3,8 3187:6 s/Susanne 3323:11 says 3149:10 secure 3214:11
3195:20,25 3187:20,22 3190:2 Sacramento 3157:20 3165:15 3268:10
3197:11,13 3198:5 3190:11 3197:16 3141:23 3166:5 3170:5 see 3152:2 3174:8
3198:6,8,10,19,21 3197:17 3199:21 safe 3152:20 3171:4 3194:13 3175:21 3176:13
3199:9 3200:18 3201:12,24 3308:5 3218:11 3219:20 3196:4 3200:15 3183:12 3184:19
3204:10 3205:11 rivers 3187:22 safety 3253:23 3260:5 3265:22 3185:7,15 3188:19
3229:6 3247:16 RMR-CRR-CLR 3254:4 3268:5 3268:6 3288:2 3198:20 3200:1,18
3248:5,17,23,25 3139:25 3323:12 3270:1,19 3275:21 3293:9 3303:6 3205:17 3213:3
3249:20 3250:6 Road 3143:6 3279:4 3311:24 3312:5 3219:2 3222:13
3255:13 3256:7,17 robotically 3274:20 salvageable 3215:3 3315:6 3319:17 3223:24 3224:3,7
3257:2,10,23 robust 3183:21 3215:22 SB 3207:17 3224:12,16,18
3258:13 3267:20 roller-compacted San 3210:7 scale 3197:9 3225:10 3227:12
3269:15 3270:11 3255:20 3256:3,6 sand 3216:1 scenario 3268:23 3231:4,7 3232:8
3275:10 3280:9 3256:9,12,14 sandbag 3274:15 3281:14 3282:6 3234:2 3250:15
3292:14 3298:7 rolling 3217:13 sandbags 3274:6 Schoene 3268:2 3277:10,12
3299:5 3300:23,24 rooftop 3184:23 Santa 3142:14 3272:22 3274:25 3311:24 3314:11
3300:25 3301:2,19 room 3215:13 3146:4,5 school 3211:3 3315:12 3322:2
3302:24 3303:15 3222:13 sat 3167:15 3207:6 3216:23 3218:9 seeing 3178:17
3305:15 3307:21 roughly 3153:15 satisfactory 3279:13 schools 3174:9 3299:16 3315:17
3308:7,18 3312:13 3198:3 3203:10,19 satisfied 3209:14 3211:4 3216:21 seeking 3240:9
3312:22 3313:1 3206:10 3299:4 3233:10 3223:2 seen 3166:19
3314:19,20 3316:6 round 3163:3,4 satisfy 3167:4 science 3152:20 3173:10 3186:2
3321:20 roundabout 3245:4 3168:1 3260:23 3177:16 3245:19 3205:25 3283:7
rights 3202:24 rugs 3212:23 save 3214:19 3246:1 3306:21 3318:25
3318:11 ruined 3212:24 3272:21 3275:4 scientist 3167:19 seepage 3276:6
ripped 3222:19 rule 3288:9 3279:1,2 3302:2,9 scope 3160:9 sees 3227:22
rise 3185:16 ruled 3305:8 saved 3204:3 3228:4 3221:10 seizure 3268:3
3258:18 3259:6 rules 3166:25 3275:15,15 Scott 3213:12 selective 3284:15
3261:18 3262:16 run 3191:2,4 3193:2 3316:21 screen 3274:2 sell 3208:1,16
3265:24 3282:8,10 3283:25 saving 3228:3 3276:3 3223:20 3313:19
risen 3217:6,6,9 3284:2,4,9 3269:23 se 3288:9 3313:21
rising 3217:12 3309:18 3320:17 savings 3223:20 Season 3220:4 Seller's 3207:19
3227:7 running 3219:12 3275:9 seated 3145:3 sellers 3207:13
risk 3151:20 3152:1 runoff 3204:25 saw 3154:2 3169:21 3229:9 3280:3 send 3211:3 3216:21
3152:23 3153:13 3208:11 3180:22 3183:11 second 3150:6 sense 3192:1 3194:7
3154:9 3155:20 runs 3198:5,19 3186:14 3189:18 3152:6,19 3160:8 3235:22 3241:20
3160:17,24 3161:5 3201:4 3283:25 3201:8 3205:12 3163:3 3170:1 3242:9 3249:24
3212:17 3222:23

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3353]
3250:8 3300:8 3233:2,4,19,23 3240:19 3241:14 3287:4,5 3320:15 3151:16 3152:4,8

separate 3151:5 3234:1 3243:17 3258:3,5,16 single 3165:10 3153:12 3158:8
3232:19 3258:20 3247:5,9,16 3260:24 3261:6,13 3175:4 3206:23 3164:20 3194:15
3264:6 3248:1,6,18,25 3262:13,15 3275:8 3259:2,8 3266:7 3235:24 3237:2,22
September 3139:13 3249:2 3250:2,7 3275:16 3281:20 3266:18 3273:16 3250:17 3254:23
3207:13 3217:21 3250:15,22 3251:7 3285:8,11 3286:18 3290:23 3317:8 3256:15 3276:17
3218:2 3219:2,4 3252:13,14 3253:8 3307:2 3311:10 single-flood 3166:23 skis 3154:22
sequitur 3310:7 3253:10 3255:12 3316:14 3167:2 3259:5 slab 3217:8,9
seriatim 3167:23 3255:14,16,19 showed 3159:13 singled 3278:16 slabs 3188:23
serious 3216:15 3256:2,18,25 3188:23 3241:25 sinkage 3154:14 slide 3176:24
service 3213:13 3257:3,9,11,14,21 3254:5,21 3268:19 sir 3145:12 3147:8 3188:18 3297:17
SESSION 3280:1 3257:24 3258:10 3272:12 3273:23 3147:11,16,25 slides 3187:7
set 3160:17 3161:4 3258:14 3259:1 3281:22 3282:4,7 3148:1 3150:21 sludge 3227:3
3170:9,21,23,25 3267:17,18,21 3293:22 3297:1 3151:3,12 3152:11 sluice 3161:15
3177:17 3188:3 3269:16,20 showing 3238:19 3155:16 3156:19 small 3213:9
3201:19 3229:15 3270:10,12,24 3265:12 3276:3 3157:13 3161:12 smaller 3148:15
3230:7,10 3231:9 3271:18,20 3293:18 3294:6 3163:2 3164:2 3151:25 3157:20
3231:16 3232:24 3277:24 3278:3,8 shown 3242:22 3169:21 3180:9 3238:24
3233:9 3235:13 3278:14 3279:14 3253:2 3182:6 3184:17 smelled 3211:13
3237:5 3242:24 3279:15 3280:9,11 shows 3197:23 3190:6 3198:13 3227:3
3247:15 3252:20 3280:14,20,21,25 3200:8 3201:2,2 3199:15 3229:3 smoking 3239:15
3270:7 3274:20 3288:14,15,24 3202:6 3206:10 3248:18 3279:17 3242:8
3275:24 3277:13 3291:7,18,22 3207:20,22 3230:1 3280:8,11 3296:18 smoldering 3212:21
3285:25 3289:5 3292:15 3295:16 3236:12 3237:2 3299:6 3300:22 soaked 3211:12,13
3296:12 3320:3 3296:15,16 3242:1,8 3303:16 3301:16 3302:14 Soares 3210:25
3321:23 3315:23,24 3312:5,24 3302:14 3308:7 3211:7,14,16,22
sets 3231:15 3321:20 shuttled 3214:7 3310:23 3315:21 3212:3
setting 3161:3 Shapiro's 3148:19 sic 3269:1 3283:5,11 sit 3148:18 soft 3306:24
seven 3221:1 shed 3170:4 side 3153:23 site 3173:23 3222:23 sold 3221:6
3227:18 Sheetrock 3210:20 3167:16,17 sitting 3227:14 sole 3149:2,5
seven- 3228:22 shelters 3214:7 3181:22 3192:25 3277:10 3316:6 3209:18,24
seventies 3245:10 ship 3149:5 3163:23 3265:12 3269:12 situation 3159:22 solely 3227:6
severe 3206:14,21 3297:13 3289:5 3308:15 3168:23 3231:19 solid 3164:5
3218:6 3219:16 shocked 3216:13 3313:5 3233:1 3236:10 someday 3213:20
severity 3202:14 shoot 3301:7 sides 3148:7 3263:5 3268:21 somewhat 3154:16
3206:3,4 3221:10 shops 3174:9 3154:17 3181:17 3269:5,21 3271:2 son 3196:11 3212:14
3290:25 3292:13 short 3258:3 sidewalk 3186:6 3271:8,13 3275:6 3218:19 3219:21
3292:18 3262:13 3266:6 Sidhu 3210:7,19 3275:18 3276:12 soon 3192:22
sewage 3211:13 shorter 3264:4,5 significant 3213:18 3276:13,15,19 sorry 3158:9
shanty 3174:5 shortly 3222:20 3213:19 3220:13 3278:23 3283:2 3174:23 3189:11
shape 3205:21 shoulders 3155:11 3223:6,25 3269:23 3288:12 3296:5 3190:6 3198:15,24
Shapiro 3141:20 show 3176:24 3270:8 3317:20 3318:22 3202:21 3204:20
3144:8 3145:21,24 3178:1,25 3182:25 significantly 3168:4 3319:7 3204:21 3207:21
3145:25 3146:4,6 3187:7 3190:12 3222:19 situations 3276:5 3229:10 3307:22
3147:21,23 3195:21 3196:2,20 Similarly 3168:7 six 3215:18 3223:23 3311:25
3228:21 3229:4,5 3197:2,18,25 simple 3298:12,13 3224:13 3288:17 sort 3155:9 3162:18
3229:10,12 3231:6 3204:7,11 3230:12 simply 3242:12 sixties 3224:25 3172:2 3176:11
3231:8 3232:8 3235:2,5 3240:16 3281:16 3284:8 size 3150:10 3194:18 3197:8

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3354]
3198:1 3202:15 3248:17,22 3287:13 3292:7,10 stop 3154:7 3266:13 3241:4,19,19,23

3239:15 3244:24 spillways 3152:16 3292:25 3267:16 3269:9 3242:3,4,6,7,9
3245:13 3246:10 3153:5,6 3155:8 state-of-the-art stopped 3186:20 3244:2 3245:8,24
3252:17 3262:21 3255:9,17 3256:23 3284:20 stops 3170:2 3247:21 3248:17
3282:6 3291:5 3257:15 stated 3241:16 3318:25 3248:21 3249:25
3292:23 3296:19 splits 3182:4 3287:10 storage 3149:16 3250:4,8,9,11,17
3299:17 3303:1 spokesman 3180:1,1 statement 3299:23 3165:3 3203:4 3250:19 3251:1,3
3305:9,14 3306:24 Sponenbarger states 3139:1 3240:6 3251:19 3256:16
3316:8 3318:8 3181:3,6,6 3141:18 3142:3,11 store 3149:19 3260:5,6 3261:10
sound 3223:5 spot 3187:16 3143:3 3145:25 3203:20 3216:13 3262:11 3263:6
3323:6 3188:15 3208:7,9 3237:20 stored 3215:18 3264:25 3265:5,17
sounded 3258:1 spreadsheet 3178:3 3240:23 3247:13 stores 3219:23 3266:8 3271:14
sounds 3292:21 St 3246:21 3247:2 3250:9,10 3253:21 storm 3150:14,14,16 3272:17 3273:21
source 3181:18 3281:3 3260:16 3261:14 3150:18,23,24 3276:17,21,21
3190:23 3192:11 Stacy 3189:16 3261:17 3262:8 3151:1,4,6,7,8,9 3282:15,20 3285:9
3196:25 3202:7 3225:7 3263:7,9 3265:21 3151:11,16,17,24 3289:21 3295:6
3216:8 3225:5 stage 3292:12 3275:1,7 3276:14 3151:25 3152:4,5 3296:7 3299:5
sources 3187:20 3307:6,7 3311:23 3285:13 3287:15 3152:20,22 3300:18 3301:11
3284:16,18,21 stages 3149:16 3296:8,14 3317:9 3153:15,16 3301:13,23,25,25
south 3163:21 3307:4 3317:24 3321:19 3155:18 3156:2,15 3302:6,7,8,21,22
3181:22 3189:22 stagnant 3211:15 static 3247:11 3156:16,24,24 3302:22 3303:7,7
3199:4,4 stained 3214:25 statute 3291:17,21 3157:6,7,8,20,21 3303:8,17,18
southern 3226:5 stalled 3295:20 3292:15 3320:23 3158:3,12,13,16 3304:5,16 3305:2
space 3156:2 stand 3194:20 stay 3173:20 3158:17,23,25,25 3311:20 3316:3
spaces 3165:3 3200:6 3312:10 3234:20 3159:1,2,5,5,13 3317:8,13 3319:18
spatially 3284:23 3322:4 stayed 3171:24 3162:13 3165:5,6 storms 3156:7
speak 3280:5 standard 3176:11 3216:24 3218:20 3165:23 3166:1 3158:8,24 3162:5
speaking 3223:7 3233:9 3236:14 3264:2 3169:11,12 3170:3 3166:20,21,22
3224:21 3237:3 3241:8 stemming 3296:3 3170:8,12,13,13 3169:15 3178:4,10
special 3228:1 3244:13,16 stench 3215:1 3178:10 3179:2,3 3178:18 3221:24
3307:12 3245:23 3248:3,12 step 3159:15 3183:5,5,6,9 3238:23,24 3251:4
specifically 3190:15 3248:14,15 3249:5 step-by-step 3191:4 3204:25 3273:4 3289:15,20
3206:24 3220:7 3254:7 3284:19 3189:24 3211:9,15,18 stormwater 3150:8
3221:19 3307:8,10 3285:1 3321:7,10 stepping 3234:1 3212:11,15,20 3175:11 3203:21
specifications 3321:11 steps 3150:3 3170:2 3213:5 3214:24 3210:6 3219:23
3161:10 star 3198:6 3170:21,23,25 3215:18,25 3216:7 3301:11
spend 3230:2 Starbucks 3174:9 3171:18 3202:21 3217:3,8,16,23 stove 3211:25
3239:12 3289:3 start 3156:22,23 3307:12,12 3218:16 3219:15 straw 3312:19
3302:9 3191:5 3304:13 Stewart 3222:25,25 3220:20,22 stream 3220:18
spent 3188:9 3313:18 3223:25 3229:21 3235:5,11 Strebel 3215:16
3213:17 3227:16 started 3184:22 stick 3256:3 3235:12,16,16,21 3216:12
sphere 3293:21 3217:10,13 3281:6 stigma 3208:22,23 3235:23,24 3236:3 street 3140:9,18
3321:14 3283:4 3301:3 stilts 3174:6 3236:8,9,16,25 3141:21 3142:6,15
spike 3185:15 3315:25 3316:8 Stockton 3165:13 3237:5,7,10,10,11 3175:6,15 3182:24
spilled 3173:7 starting 3170:17 3165:15 3166:4 3237:12,19,25 3183:2,19 3184:9
spillway 3152:23 3214:22 3261:16,21,25 3238:1,11,20 3186:15 3223:11
3203:12 3237:12 state 3263:21 3262:5 3298:21 3239:3,16,17,17 streets 3175:10
3237:17 3241:16 3275:2 3284:25 stood 3255:16,21 3240:17,17,20,21 3176:3,4 3183:3,7

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3355]
3183:21 3186:5,23 3257:25 3310:7 3314:4 table 3145:14 3258:10 3266:15

3190:18,18,22 substance 3239:19 Supreme 3166:24 3286:11 3267:21 3298:17
3212:12 3218:24 substantial 3202:14 3233:14 3260:20 tables 3203:7 3298:24 3306:16
3219:3 3223:19 3230:16 3277:2 3279:5 tackle 3253:11 3307:22 3311:8,15
strictly 3261:14 3258:18 3262:16 3288:21 3293:3 take 3147:24 3317:17 3320:15
strike 3266:20 3266:2,4 3295:21 3317:21 3150:23 3153:1 talked 3168:4
strikes 3321:2 substantiality 3317:22 3318:2,21 3156:10 3162:14 3169:5 3171:2
strips 3205:13 3231:10 3314:1 surcharged 3186:12 3162:25 3163:20 3180:19 3186:15
struck 3148:14 substantially 3204:6 3163:24 3172:25 3186:18 3187:9
3237:24 3268:20 3220:15 sure 3154:23 3156:9 3195:16,17 3200:4 3192:3 3194:15
3273:24 subterranean 3156:9 3171:7 3200:16,16 3204:19,22 3206:5
structural 3195:23 3184:2 3189:12 3256:4 3202:16 3207:16 3209:5 3248:16
3200:8,22 3206:6 succeed 3279:7 3257:13 3277:22 3228:9,22,24 3253:12 3255:22
3207:1 sudden 3246:24 3299:1 3314:10 3229:11 3264:19 3293:24 3301:22
structure 3151:17 sued 3208:19 3317:19 3265:1 3267:7,10 3302:25 3315:3
3151:22,23 3152:5 suffer 3164:13 surface 3208:11 3267:19 3275:25 3317:14 3320:9
3152:13,16 3206:9 3209:3 surge 3212:20 3279:11 3282:19 talking 3153:11
3153:24,24 sufficient 3150:16 surgery 3213:22 3290:8 3291:20 3154:19 3156:23
3155:22 3156:25 3164:19 3186:11 surprise 3282:21 3295:1 3298:3 3157:6,21 3159:25
3157:2,4 3159:12 3235:2 3252:6 3295:5 3304:21 3305:22 3160:22,23 3161:2
3166:8,16 3200:9 3261:18 3293:5 surprised 3168:12 3312:18 3166:3,4 3173:7
3201:11 sufficiently 3183:21 surprising 3180:22 taken 3195:24 3175:1 3178:3
structures 3187:25 3230:16 3180:23 3316:9 3196:6 3222:5 3182:12 3183:9
3204:14 suggest 3228:21 surrounding 3300:1 3224:1,15 3227:22 3184:24 3185:18
studied 3303:25 suggested 3249:20 survey 3218:14,14 3260:25 3267:4 3186:1 3188:10,11
studs 3211:17 3252:14 3246:18 3307:12 3311:20 3191:6,19 3197:19
study 3178:19 suggesting 3172:8 surveyed 3246:19 3313:16 3226:20 3230:2
3201:16,20 Suite 3140:10 survives 3307:20 takeout 3212:1 3232:10 3239:12
3206:12 3212:21 3141:5,12,22 Susan 3215:16 takes 3298:14 3244:19 3264:8
3304:2 3143:7 Susanne 3139:25 takings 3150:18 3267:6 3292:13
stuff 3214:20 summary 3201:16 3323:4,12 3160:18 3161:3,4 3299:24 3300:11
subdivision 3226:4 3316:23 susceptibility 3162:18 3166:7 3303:10,23 3308:5
3294:13 sun 3187:4 3159:1 3170:9 3172:14 3309:24 3310:9
subject 3176:18 Sunbright 3212:6,7 susceptible 3159:5,6 3177:2,3,11,22 3314:9,21 3315:25
3208:6,17 3226:13 3213:3 3163:13 3169:15 3230:17 3231:23 3317:19,19
3289:14 3315:7,8 supplement 3146:20 3172:8 3233:15 3246:22 3318:16
3317:25 3147:5 suspect 3209:1 3263:22 3277:2 talks 3169:24
subjective 3293:10 support 3176:14 3314:19 3279:7 3288:11 3247:3 3307:4
3293:14 3321:6,10 3194:24 3239:10 sutures 3214:5 3289:18 3295:23 tall 3219:6
submerged 3215:24 3246:22 3266:2,5 swell 3185:6 3297:23 3304:14 tank 3203:4
submission 3240:13 3290:24 3309:21 swimming 3215:13 talk 3152:4 3156:10 tar 3168:25
submit 3179:4 3318:7 switch 3157:15 3160:8 3161:8 Tardiff 3142:5
3240:15 supported 3234:6 sync 3171:3 3170:16 3175:17 3146:1,2
submitted 3241:6 3319:11 system 3176:5 3180:6,12 3182:16 task 3313:16
3322:7 supports 3159:11 3192:16 3183:20 3186:21 tasked 3287:19
subsidence 3154:18 3294:5 systems 3185:10 3193:12 3209:6 taught 3215:8
3154:19 3155:1 suppose 3303:25 3231:3 3247:5 Tax 3169:14 3188:2
3255:23,25 supposed 3167:7 T 3248:15 3251:2 3199:13,16,17,21
T 3139:10 3305:17

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3356]
3220:10,14,22 3230:7,8,10,20,24 3168:2 3230:22 3255:23 3314:4,7 third 3142:16

3251:3 3282:15 3230:25 3231:9,10 3232:18 3233:5,17 think 3148:6,21 3227:24 3230:2
teaching 3168:16 3231:15,16,22,24 Texas 3139:4 3151:3 3154:2,3 3253:23
3206:10 3232:22,24 3140:4,11,19 3154:14,21 3157:8 Thomas 3149:8
team 3148:10 3251:25 3252:10 3141:6,13 3143:8 3159:9,11 3161:13 3234:8,14,14
3167:18 3192:4 3258:21 3262:14 3145:7 3149:4 3161:25 3163:9 3235:7,18 3241:8
3276:17 3266:17 3287:24 3207:12,18 3166:15 3167:20 3242:5 3249:10
tech 3145:18 3288:1 3289:1 3208:13 3215:8 3167:20,22,25 3271:4 3273:18
tell 3157:1 3192:23 3293:14,14 3295:9 3218:3 3250:21 3168:15 3169:7,10 3274:4,9,16
telling 3164:14 3302:12 3315:18 3276:15 3291:17 3170:1 3171:6,15 3275:19 3276:19
3296:20 testified 3175:4 3292:2 3313:17 3171:25 3172:6 3307:7 3309:17
tellingly 3271:5 3196:11 3199:12 3320:23 3174:24 3176:2 3320:5
3291:12 3211:12 3214:24 thank 3147:11,13,23 3177:10,24 3179:1 Thomas' 3241:5
temporary 3231:19 3216:12 3220:21 3147:25 3148:8 3180:23 3183:4,8 3276:23
3288:12 3226:15,17 3227:1 3150:12 3152:10 3184:13,16,22 thought 3151:10
ten 3191:16 3198:3 3234:8 3237:23 3155:15 3182:3 3185:2,24 3192:3 3158:2,12 3169:24
3198:4,22 3214:16 3238:3,10,20 3190:4 3197:22 3192:7 3193:22 3186:24 3195:3
3214:17,17 3239:1 3241:23 3200:2 3202:13 3194:16,22 3195:8 3217:3 3221:21
3219:16 3225:25 3257:17,18 3209:8 3225:20,20 3202:6 3207:12 3223:11,24
3240:6 3297:6 3271:21 3283:24 3225:23 3228:13 3220:13 3222:1 3239:16 3240:16
3316:14 3284:10 3293:9 3228:13,15,20 3223:6 3225:5 3240:20 3241:18
tenant 3210:14 3306:19 3309:5 3229:3,6,12 3229:18 3230:24 3242:3,4 3243:25
tenets 3148:20 3317:10 3320:16 3253:9 3280:21,25 3233:17 3234:15 3245:6 3273:8
tennis 3216:1 testifies 3242:5 3291:7 3296:15,16 3234:23 3235:6 3290:21 3312:9
term 3247:25 testify 3293:17 3296:18 3315:22 3238:17,21 3314:7,25 3319:11
3259:11 testifying 3287:5 3315:24 3321:20 3242:15 3244:23 thousand-year
terminal 3224:22 testimony 3149:7 3322:5,7 3245:4 3246:7 3260:6
3225:12 3155:2 3162:3 theirs 3277:6 3247:6 3249:19 thousands 3218:16
terminated 3210:15 3184:9 3186:17 theme 3184:6 3250:23 3251:7 3264:23
terminology 3188:7 3189:16,20 3186:20 3252:4 3253:15 threat 3171:13
3237:11 3256:7 3191:11 3192:15 theoretical 3191:23 3254:25 3255:9,19 3221:23
terms 3153:18 3194:17 3199:16 theories 3270:21 3256:4 3257:6,11 three 3151:11
3154:22,25 3155:8 3220:11 3222:2 theory 3166:23 3257:25 3261:12 3152:7,19 3158:21
3165:1 3172:5 3235:18 3236:6 3167:2 3267:3 3261:16 3270:25 3163:8 3181:19,19
3173:13 3183:8 3249:10 3251:8 thick 3214:25 3276:13 3277:25 3182:16 3185:20
3199:18 3205:7 3252:5 3257:8,20 thin 3272:25 3280:17 3282:11 3191:16 3193:11
3206:16 3209:2,7 3257:24 3260:2 thing 3150:4 3155:9 3282:12,14 3294:2 3193:18 3194:7
3292:14 3299:9 3276:24 3281:21 3159:25 3166:6 3300:23 3301:19 3195:13,16
3301:15 3309:2 3282:7 3283:3,16 3167:3,15,21 3302:18 3304:9,9 3196:18 3198:4
3310:9,22 3283:16 3284:17 3175:12 3185:18 3304:22 3308:23 3209:22,24 3213:5
terrible 3296:24 3287:18 3291:3,8 3195:19 3196:20 3308:24 3309:3 3214:17 3220:12
test 3145:11 3167:1 3291:10 3301:16 3197:5 3202:15 3310:5 3312:5,20 3221:7 3236:5
3168:3 3177:20 3305:18 3307:7 3203:22 3206:18 3313:16 3314:9,22 3253:19 3258:11
3180:20 3181:1,17 3309:14 3311:3 3206:19 3247:23 3315:4 3319:9 3258:12 3262:7,7
3182:20,23 3314:6 3317:3,12 3258:25 3302:20 thinking 3157:2 3282:15 3283:23
3187:21 3206:25 3320:4 3304:20 3312:25 3182:7 3184:20,22 3286:4 3297:9
3209:15,16,18,25 tests 3162:13 things 3223:24 thinks 3312:20 3307:9 3319:18
3216:20 3217:1 3164:24 3167:12 3247:10,11 Thiokil 3268:12 threshold 3222:12

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3357]
throw 3245:13 3293:8,15 3298:18 3239:14 3214:19 3236:19 3220:3

thrown 3211:19 3316:7 3318:25 treated 3155:4 3245:13 3271:1 TV 3214:19 3226:20
thumb 3197:8 Todd 3225:24 3237:10 3240:20 3282:23,23 3289:2 two 3147:9 3148:4,6
ticked 3173:12 3228:3 trenching 3310:2,2 tries 3208:15 3148:20,23
tied 3172:1 3243:2 told 3166:24 trial 3139:15 3147:4 3261:12 3152:19 3160:4
3282:6 3218:17 3221:19 3147:5 3148:12 trigger 3301:7 3167:7 3169:21
tight 3298:5 3315:1 3160:13 3167:25 Triple 3239:23 3178:17 3179:16
tiles 3219:14 tomorrow 3160:11 3198:14 3200:23 3241:2 3182:22 3191:16
timber 3318:7 top 3152:24 3153:14 3207:7 3209:23 Tropical 3305:2 3196:25 3197:7
time 3147:19 3148:6 3158:19,20 3212:3 3213:9 troubling 3176:20 3200:19 3206:2,4
3152:18 3154:8 3159:23 3168:25 3215:8 3219:5 truck 3217:21 3213:5 3214:3
3158:3 3163:5 3170:4 3173:20 3221:6 3222:2,21 trucks 3227:15 3217:7 3219:15
3164:2 3171:5,6 3178:4 3182:9 3223:16,22,25 true 3176:13 3227:24 3232:18
3171:12,20,22,24 3183:12 3189:20 3224:24 3225:5 3195:13 3197:17 3238:1 3239:13,20
3171:25 3172:3 3191:13 3255:4,6 3227:1,21 3229:25 3213:2 3232:23 3240:7 3250:16
3176:23 3178:20 3274:8 3299:25 3234:6,8,14 3244:4,5,6 3254:2 3260:4,7
3178:23 3179:9,11 3311:25 3312:1,3 3237:21,21 3238:9 3251:10,16 3261:2 3265:15
3183:8 3188:10 3312:18 3238:21 3239:2,3 3263:22 3269:20 3275:24 3276:7,11
3193:23 3194:3,11 topic 3313:1 3314:2 3239:9 3241:16,20 3271:18 3284:2,3 3281:19,23 3307:6
3194:15 3196:13 topographic 3242:10 3247:6 3287:4 3299:23 3307:9 3319:20
3196:23 3205:8,24 3197:22 3248:2,19 3249:10 3300:14,14 3321:1 3320:2
3211:24 3212:4 tort 3164:16 3249:23 3250:10 truly 3249:22 two-part 3231:10
3213:19 3219:22 3229:22 3230:10 3250:23 3252:5 3271:2 two-year 3183:5
3226:2,3,11,22 3231:13,14 3232:1 3254:21 3256:4 truth 3191:1 type 3157:7 3168:3
3232:12 3235:11 3262:14 3266:9 3258:5 3260:2 truthfully 3175:5 3170:3 3175:24
3235:22 3236:1 tort/taking 3232:6 3261:9 3265:11 try 3148:18 3167:8 3184:24 3185:2
3239:12 3241:9 torts 3231:23 3266:4 3268:19,22 3167:9 3170:22 3192:12 3209:3
3245:21 3253:17 torts/ 3233:14 3271:4,21,22 3176:19 3197:19 3263:11 3265:19
3254:6 3262:22 total 3215:23 3272:7 3273:21,22 3202:15 3230:22 3302:22,23 3319:1
3264:2,12,13,17 totally 3215:24 3274:10 3275:12 3243:22 3253:11 types 3173:9
3264:19 3265:6 3224:17 3275:22 3276:20 3267:18 3268:14 3182:19,22
3267:10 3284:1 touch 3283:20 3278:9 3281:20 3271:12 3280:22 3260:10 3263:21
3289:4,17,17,18 touched 3211:18 3282:24 3283:3 3282:24 3291:23 typically 3191:22
3290:3,3,8,19 3219:10 3290:2 3284:17 3285:6,19 trying 3191:23
3292:17 3293:6 tours 3197:5 3285:22 3287:20 3199:8 3208:1 U
3299:8 3305:14 trailer 3222:20 3291:4,19 3294:3 3309:8 3313:19 U.S 3146:7 3187:10
3311:2 3313:3 transcriber 3323:1 3297:11 3299:2 tube 3194:16 3259:4 3268:13
3317:22 3320:18 3323:4 3301:16 3311:3 Turkey 3190:16,21 ultimately 3267:2
times 3168:9 transcript 3147:16 3317:3,12 3318:5 turn 3157:16 3180:4 3304:3
3235:25 3243:3 3235:17 3238:14 3318:17 3320:4,6 3202:14 3223:5 un 3317:1
3252:2 3262:7 3275:22 3320:19,24 3225:18 3246:12 unable 3216:3
timing 3246:5 transcription 3321:25 3322:1 3258:14 3270:24 unadjusted 3291:11
today 3145:19 3323:5 tributaries 3185:4 3281:1 3286:1 unavoidable
3150:2 3215:7 transit 3161:18 3190:16 3193:21 3287:21 3293:2 3267:25 3278:24
3222:22 3229:17 trash 3205:16,18 3197:10 3239:25 turned 3319:19 unbelievable
3243:10 3246:8 3227:15 tributary 3185:4 3320:7 3223:12
3249:19 3261:12 traumatic 3213:11 3188:5 3194:6 Turney 3224:6,7,13 uncertain 3266:20
3279:6 3289:5 treat 3167:11 tried 3170:20,24 turning 3204:18 uncertainty 3227:24
unclear 3283:12

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3358]
uncontested uniform 3162:3 3201:1,1 3204:5 value 3206:9,20 3232:1 3268:4

3185:12 uniformly 3293:10 3204:17 3230:5,5 3207:3 3208:25 3270:17
uncontroverted uninhabitable 3234:5,13,22 3218:5 3262:23 views 3232:4
3175:5 3210:16,18 3235:1,20,22 3265:23 3275:5 vignette 3173:19
underexpected 3211:23 3236:2,22,23 3303:14 3320:22 Village 3223:3
3158:7 unit 3210:12,12,15 3243:20 3244:1,10 values 3216:15 Vincent 3140:8
underneath 3168:23 3210:22 3245:7 3246:16,18 variable 3284:23 3145:17
3219:14 United 3139:1 3246:19 3261:19 variation 3191:17 violation 3259:6
underreported 3141:18 3142:3,11 3263:20 3269:1,3 variations 3196:19 3266:10
3158:7 3143:3 3145:25 3269:12 3270:5 variety 3231:17 vis-à-vis 3154:4
underscore 3266:14 3208:7,9 3237:20 3271:10 3272:2,13 3232:13 3290:10 visit 3173:23
underscored 3275:7 3240:23 3247:12 3274:19 3278:17 various 3243:3 visiting 3173:24
3279:1 3250:9,10 3253:21 3281:12,13,15,23 3274:7 visual 3189:15
underscores 3260:15 3261:14 3286:14,17,20 varying 3164:25 visually 3186:13
3244:24 3261:17 3262:8 3287:1,4,14 VB 3141:10 3212:10
understand 3148:21 3263:7,9 3265:21 3289:11 3290:7 vegetation 3285:12 Vogler 3183:19
3149:23 3176:4,19 3275:7 3276:14 3293:8,23 3294:7 3285:23 3311:22 3310:13,15
3186:8 3187:5 3285:13 3296:8,14 3294:9,10,16,18 3312:6,14 voice 3280:23
3197:24 3208:14 3317:8,24 3321:19 3294:20,23 vent 3311:25 3312:1 voir 3191:11
3247:17 3257:23 unlikelihood 3302:1 3297:25 3298:5 3312:6,23 volleyball 3215:12
3282:24 3300:8 unmodified 3198:2 3306:8 3307:20 versa 3272:15 3216:1
understanding unopposed 3147:20 3309:9,19 3321:15 versus 3231:13 volume 3139:15
3154:23 3164:5 unprecedented urging 3165:10 3262:14 3150:24 3194:8
3199:20 3235:19 3160:7 3249:23 USAC8694 3204:8 viable 3287:8,11 volunteers 3211:16
3245:18 3246:1 3250:7,19 3251:1 use 3152:7 3156:23 3296:6 vs 3261:16 3268:2,3
3249:8,9 3257:21 3251:16 3299:18 3157:7,19 3158:23 vice 3272:15 3268:13 3270:15
3307:24 3299:20,24 3300:3 3165:1,3 3170:7,8 vicinity 3198:2 3272:22 3274:25
understands 3303:1 3317:2 3173:3 3185:12 victims 3186:21 Vuc 3145:14
3243:22 3245:22 unquote 3307:25 3191:21 3192:5,6 3227:12 Vujasinovic
understood 3235:15 unsupported 3192:12 3204:17 video 3179:15,17,24 3141:11 3144:7
3237:13 3244:9,15 3308:21 3205:4 3210:4 3196:2,6,8,10,12 3145:14 3173:17
3259:1 3278:14 updated 3253:21 3216:4 3219:17 3196:14 3214:14 3225:19,21,23
3303:16 3312:9 3254:3 3252:16 3256:7 3214:23 3223:10 3228:14,15
3317:16 upland 3287:14 3284:21 3285:1 3223:13 3225:8 VUK 3141:11
undertake 3159:10 upper 3181:24 3308:20 3318:12 videos 3189:17 vuk@vbattorneys...
undertook 3219:11 3182:5 3193:15,17 3318:15,19 3195:20 3141:15
underwater 3178:9 3194:1 3215:21 3321:23 view 3155:13 3158:1
undevelopable 3238:23 3276:22 uses 3181:6 3188:16 3159:11 3161:3 W
3287:15 3285:4,10 USGS 3220:17 3192:21 3202:16 W 3140:17
undeveloped upstairs 3211:25 3285:14,15,16,19 3205:8 3230:20 waist-deep 3212:15
3235:23 upstream 3139:3 3285:20 3232:19 3235:2 waiting 3227:15
undisputed 3222:1 3140:3 3145:7,13 utilize 3149:15 3243:18 3245:2 waived 3308:24
3227:5 3254:22 3146:12 3148:4 3251:15 3252:4 walk 3167:8
undoubtedly 3149:14,20 V 3253:1 3254:17 3216:22 3304:19
3247:13 3153:20 3154:9 V 3186:6 3258:19 3266:15 walked 3171:23
unexpected 3239:9 3160:23 3163:15 valid 3156:14,14,23 3267:13 3270:13 walking 3212:15
unfortunate 3165:16 3169:2 3156:25 3157:7 3298:20 3309:22 3218:24
3179:19 3179:13 3181:12 3158:13 3196:12 viewed 3166:11 wall 3197:13
valuable 3174:17 3198:23 3205:19

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3359]
3219:6 3308:11 3159:19,22 3281:23 3286:19 3216:16 3232:23 wicked 3212:22

walled 3193:3 3160:25 3161:18 3286:23 3288:19 3232:25 3249:13 wide 3198:23
walls 3205:13 3161:19,22 3290:4,7 3296:24 3249:15 3251:15 3306:12
3212:22 3163:14,15,21 3301:9,9,18 3257:12 3264:7 widespread 3290:12
want 3146:24 3164:19 3165:18 3304:4,5,16 3267:15 3276:3 wife 3210:10,25
3148:1,9,13 3165:24,25 3167:5 3306:5,15,18,20 3292:13 3307:15 3213:15,23
3154:13 3165:1 3168:11,11,11,17 3306:22 3307:13 3308:5 3309:24 3226:19
3170:22 3189:12 3169:3 3170:4 3307:18 3310:3 3310:7 wild 3159:23
3189:13 3191:22 3175:23 3179:13 3312:3,4,19 we've 3166:19 wildlife 3318:8,13
3195:1 3202:25 3179:19,21,23 3313:9,9,11 3168:1 3171:2 3318:20
3205:7 3206:2 3181:23 3182:13 water's 3290:20 3172:11 3173:11 WILLIAM 3141:20
3229:16,25 3230:2 3183:4,23 3184:1 waters 3166:18 3173:12 3241:6 william.shapiro@...
3230:6 3239:19 3185:6,8,20,21,22 watershed 3179:4 3283:13 3316:11 3141:25
3253:11 3259:22 3185:22 3186:2,4 3192:15,20 3237:5 3316:17,19 WILLIAMS 3141:3
3266:13 3267:6,22 3186:18,19,22 3250:5 3299:11,13 3318:25 willing 3267:10
3272:4 3278:15 3187:2 3188:24 3299:14,15,20,20 wealth 3293:20 3279:10
3281:1 3283:16,20 3189:18,21,22 3299:21,25 3300:1 weapon 3181:7 Willow 3224:7
3286:1 3287:21 3190:18,19 3300:3,9,12,17,17 weather 3239:1 Willowford 3182:2
3289:7 3293:2 3192:10,12,16,21 3303:19 3251:9,9,10,11 3182:3,5
3295:16 3299:21 3192:24 3193:3,6 watersheds 3156:15 3284:11,14 Wind 3212:6,13
3307:23 3308:23 3193:8,10,17,19 3235:12 3237:14 wedding 3215:15 3213:10
wanted 3173:14,14 3194:4,5,8 3195:9 3238:1,13,24 week 3226:25 Wind's 3212:21
3173:22 3211:2,5 3196:5,13,15 3240:24 3260:4,7 3227:8 window 3250:24
3214:11 3216:21 3197:1,14,15 3276:22 3295:21 weigh 3288:5 Winds 3212:9,11
3218:9,10 3221:22 3199:2 3200:21 watertight 3312:18 Welcome 3145:20 Winds' 3213:2,6
3304:7 3202:2,8 3203:7 way 3148:22 3158:4 3146:3 3229:9 Wingleaf 3213:15
wants 3159:8 3203:24 3204:25 3160:11 3161:3,22 3280:3 witness 3180:24
3178:21,22 3205:1,9 3206:23 3165:22 3166:19 went 3154:3 3185:24 3224:24
war 3164:3 3247:13 3208:8,10,11 3174:7 3178:6 3155:12 3160:6 3238:10 3257:17
3247:13 3248:8 3211:9,13,15,18 3188:17 3190:10 3166:1 3168:16 3285:16
warehouse 3257:19 3212:12,15,20 3192:9 3193:23 3172:19 3184:10 witnesses 3155:3
warning 3294:12,14 3213:5 3214:17,25 3245:4 3286:23 3184:11 3186:13 3186:17 3248:2
Washington 3215:2,18,25 3291:9 3308:9 3186:23 3193:20 3309:5,12
3139:12 3142:18 3216:7 3217:8,11 3310:10,14 3312:2 3193:20 3207:7 Woodway 3141:12
wasn't 3151:6 3217:15,16,18,23 3319:3 3214:17,21 Woody 3224:22
3163:6,24,25 3218:16,25 3219:7 ways 3296:6 3257:15,16,18,22 word 3165:1 3175:2
3168:20,20 3219:15 3220:9,12 we'll 3160:8 3265:11 3307:17 3208:23 3234:23
3171:23 3186:11 3221:1 3222:12 3182:16 3209:15 weren't 3216:25 3234:23 3274:24
3190:19 3217:12 3223:17 3224:13 3250:14 3265:9 3256:21 3296:23 3303:1 3313:17
3249:24 3271:3 3224:16 3225:11 3279:12,18 west 3221:23 3316:25 3320:22
3293:1 3320:23 3227:4,5 3242:2 3295:12 3224:21 3321:23
watch 3307:6 3257:14 3258:4 we're 3160:22 whatsoever 3177:18 words 3164:23
watching 3226:19 3261:25 3262:1,6 3164:14 3165:25 3297:8 3216:14
water 3149:9,19 3264:16 3271:16 3166:3,4 3170:8 white 3222:13 work 3153:17
3150:24 3151:9 3272:3,10,24 3171:3 3182:12 3319:13 3188:4 3189:25
3153:20,25,25 3273:2,10 3274:13 3184:24 3185:18 whole.' 3298:2 3200:25 3224:19
3154:6,7,23 3276:9 3277:16,19 3187:4 3189:13 wholesale 3318:6 3227:16 3297:1
3155:3 3159:12,17 3278:4 3281:12,22 3191:6 3201:11 3319:3 3312:2

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3360]
worked 3190:18 Y 3319:25,25 130 3287:10 3244:4 3247:11

3204:1 3270:5 Y 3164:10,15 zombi 3221:5 136 3200:2 3268:14 1940s 3235:11
working 3152:14 yard 3184:24 zone 3224:11,11 1374 3318:4 3236:7 3237:8
3312:11,25 3221:9 3224:4 3295:2 3313:23 1375 3318:10 3238:13,21,23
workout 3215:13 3227:14 zoom 3200:2 138 3220:17 3241:18 3242:7
works 3159:3 yeah 3156:9,22 3299:21 3300:12 14 3157:16,17,25 3243:2 3247:1
3190:8 3173:3,6 3174:12 3197:18 3251:13,22
world 3164:3 0 15 3253:15 3260:18 3253:21
3175:12 3183:10
3192:16 3247:13 3186:9 3199:1 0.3 3284:6 3310:21 1945-ish 3171:11
3281:17 3308:11 3200:2 3300:13 0.36 3320:19 15,000 3203:10 1955 3236:11
3308:13,17,18 year 3199:14 0016 3147:17 150 3314:22 3244:5 3248:9
3310:10 3311:6 3210:22 3219:18 007 3201:15 1500-year 3237:18 1960s 3236:20
worldly 3176:17 3225:16 3242:7 03301 3142:8 3241:17 3277:2
worried 3216:25 years 3148:4,6 09/18/2019 3323:11 152 3287:15 1962 3244:6
worries 3198:17 3157:23,25 3158:4 155 3285:12,24 1970s 3245:16,17
worry 3203:16 1 3311:14 1977 3245:6,19,20
3158:8,9 3160:5 1 3191:15 3207:13
3217:10 3170:11 3175:1 1597 3177:25 3248:25 3249:2,3
worst 3217:4 3271:24 16 3147:17 3237:1 3254:5
3212:7 3213:13 1.1 3191:16
3235:16 3236:3,8 3221:8,20 3223:1 3286:11 1980 3177:6,18
3236:16,25 3237:7 1/2 3191:15 3198:3 160 3174:25 1980s 3246:4
3224:14 3225:25 3217:9
3244:2 3245:8,24 3226:2 3228:5,7 1658 3274:1,2 3253:14 3254:13
3247:21 1:05 3279:19 168 3204:12 3294:9,11
3234:21 3238:25 10 3181:16 3185:17 17 3286:11 3303:4
wouldn't 3214:6 3240:25 3250:12 19817 3276:2
3226:15 3301:14 3185:19 3209:17 17-9001 3145:8 1989 3237:15
3250:13 3254:9,9 3228:5
3312:16 3260:3,18,23 17-9001L 3139:4 3241:14,16
wow 3191:20 10:00 3139:14 178 3273:21 1990s 3294:9,11,13
3261:2 3262:4,7 100-year 3183:13,15 17th 3315:10
wrecked 3174:3 3262:10 3288:17 1992 3294:15
Wright 3140:7 1000 3237:18 18 3228:7 3237:14 1995 3294:16
3290:23 3294:8 1000- 3241:17
3144:5 3145:17 3305:16 3306:21 3241:14 3276:2 1996 3294:18
3173:17 3209:6,9 1000-year 3238:20 180 3314:22 1st 3217:21 3218:2
3314:18 3242:1
3209:10,11,13 yellow 3177:4,20 1899 3150:14 3219:2
3212:19 3214:1,24 104 3150:15 3158:5 3159:2
yesterday 3146:18 11 3139:15 3213:6,8
3218:23 3170:12 3237:4,10 2
3146:19 3228:5
written 3241:9 York 3211:7 3239:16 3240:20 2:00 3279:13,19
3294:12 118 3275:21 3276:1 3241:4,19,22 2:02 3280:2
you-all 3179:20 3306:25
wrong 3189:14 3197:22 3301:23 20 3207:23 3208:1
3194:14,24 3195:4 119 3275:22 19 3222:14 3228:7 3261:2 3263:15
young 3219:20 3276:23
3196:16,17 3217:4 3226:7 3319:10 3307:1 3319:10
3264:13,13 12 3310:20 1935 3150:18 20-year 3220:20
younger 3218:18 120 3276:23
3273:17 3275:11 3151:6,7,11 2000 3143:6
3298:7 3299:5 Z 129518 3303:5 3155:18 3163:8,8 3152:18
3305:10 3308:21 Z 3164:10,15 13 3139:13 3145:11 3235:11,15,21,24 2000s 3246:19
3312:13 zero-sum 3160:1 3176:9 3180:20,25 3236:8 3301:24,25 2001 3211:1
wrongly 3284:12 3268:23 3269:6 3181:1,16 3182:20 3319:18 2002 3213:16
3285:5 3271:2,8,23 3185:18,19,21 1938 3165:21 2003 3216:19
wrote 3254:16 3272:7 3306:4 3197:18 3206:25 3169:7 3300:6 3218:13 3222:4
Zetterstrom 3209:17,25 1940 3150:22 2004 3218:13
X 3275:20 3276:11 3232:24 3297:6 3161:10 3235:14 3222:4
X 3144:1 3164:10,15 13,000 3204:14 20044 3142:18

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
Trial
[3361]
2005 3210:8 28 3197:25 4 3147:17 3187:7 6 3177:4 3208:3 800 3281:19

3221:17 28.5 3198:1 3268:12 6.8 3269:14 800-year 3262:11
2009 3178:20,25 28th 3195:24 3196:7 4.7 3278:21 6:15 3217:16 8000 3250:13
3207:13 3213:13 3212:11 3213:23 4:30 3217:8 600 3141:5 801 3281:19
3294:22 3218:20 3222:11 40 3165:21 3191:15 601 3142:15 8441 3141:5
2010 3224:15 3226:17 3238:17 3306:21 603 3210:12,15,22 850-year 3238:1
3294:22 29 3210:8 3319:15 400 3141:12 608 3200:2 3242:4 3260:4
2012 3218:8 2960 3147:16 409 3143:9 3260:22 61 3147:18 3282:20 3295:6
2013 3317:22 2961 3147:16 440,000 3226:6 625 3268:12 885 3250:12
2014 3220:5 29th 3217:5 3222:15 444-5002 3140:12 6363 3141:12
2017 3222:11,15 3223:15 46 3177:1 68 3320:10 9
3237:24 3259:24 469 3140:12 69 3320:10,16 9 3176:24 3238:17
3274:3 3295:18 3 47 3178:14 9-700 3141:22
2018 3221:7 3 3217:9 4709 3140:18 7 9:55 3196:6
3222:20 3223:22 3:01 3322:8 48 3183:1 7 3158:19 3177:5 90 3156:17 3237:5
3278:19 30 3192:18 3206:10 3190:14 3204:3,6 3250:5
2019 3139:13 3206:13 3209:1 5 3204:9 3240:19 900 3140:9
3218:2 3222:21 3212:7 3221:20 5 3139:9 3149:3 3269:13,24 3275:9 9000 3220:19
202 3142:19,20 3254:9,9 3260:23 3156:21,21 3187:8 3279:2 916 3141:24
2029 3238:13 3300:14 3315:10 3207:20,20,22 7-4 3149:9 930-2207 3141:24
2030 3317:4 3002 3195:21 3235:13 3297:18 70 3158:8 3160:5 94 3287:12
2096 3271:7 3005 3201:3 3302:5 3303:4 3170:17 3175:1 95 3204:8 3287:12
21 3207:24 3208:2 305-0466 3142:19 3319:8,15 3234:21 3262:4 95814 3141:23
210-square-foot 305-0506 3142:20 5.008(b) 3207:19 70-year 3260:10 97 3235:18
3215:7 30th 3212:13 50 3157:23 3158:4 7000 3203:9,9,18,19
211 3268:14 3225:10 3240:25 3203:24
216 3260:21 31 3178:1 3198:3 50-year 3169:11,24 713 3140:20 3141:7
2176 3179:16 3286:6 3239:17 3241:10 3141:14
22 3147:16 3293:12 3146 3144:4 3241:11,12 717 3139:11
224-7800 3141:14 31st 3211:9 3220:5 3303:12 72 3170:17
228 3204:7 32 3195:21 500 3140:10 737 3238:7 3278:20
2284 3237:16 3209 3144:5 500-year 3187:17 749 3216:3
3241:15 3220 3144:6 3295:2 75202 3140:11
23 3201:15 3225 3144:7 5000 3260:3 7611 3142:17
230-2200 3141:7 3229 3144:8 5000-year 3238:6 766-3822 3143:9
24 3201:15 3296 3144:4 3242:3 3250:11 77004 3140:19
24-C 3227:12 3315 3144:8 501 3141:21 77017 3141:6
24-hour 3184:12 339 3207:18 526 3182:25 77057 3141:13
25 3213:13 3236:12 34 3223:1 3238:16 775 3250:12
3306:11 35 3152:7 3166:1 53 3142:6 775- 3260:4
250 3156:21 35.1 3150:15 533-1704 3140:20 775-year 3169:12
25th 3275:21 369 3143:7 54 3319:15 3237:25 3295:5
2685 3310:20,21 3700-square-foot 55 3279:11 77550-1229 3143:8
26th 3274:3 3226:3 59 3196:2 78 3203:8
2769 3320:19 38 3165:5 597 3261:23 3262:7 7900 3203:8
2770 3320:19 3815 3207:18 597-foot 3262:9
27th 3195:23 3196:5 39 3165:21 5th 3219:4 8
3196:6 3217:3 8 3254:25
4 6 80 3305:16

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

2019 - 09 - 13 Closing Argument Transcript

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2019 - 09 - 13 Closing Argument Transcript

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In the Matter of:

Upstream Addicks and Barker (Texas) Flood-Control

September 13, 2019

Condensed Transcript with Word Index

For The Record, Inc.

1 (Pages 3139 to 3142)

2 (Pages 3143 to 3146)

3 (Pages 3147 to 3150)

4 (Pages 3151 to 3154)

5 (Pages 3155 to 3158)

6 (Pages 3159 to 3162)

7 (Pages 3163 to 3166)

8 (Pages 3167 to 3170)

9 (Pages 3171 to 3174)

10 (Pages 3175 to 3178)

11 (Pages 3179 to 3182)

12 (Pages 3183 to 3186)

13 (Pages 3187 to 3190)

14 (Pages 3191 to 3194)

15 (Pages 3195 to 3198)

16 (Pages 3199 to 3202)

17 (Pages 3203 to 3206)

18 (Pages 3207 to 3210)

19 (Pages 3211 to 3214)

20 (Pages 3215 to 3218)

21 (Pages 3219 to 3222)

22 (Pages 3223 to 3226)

23 (Pages 3227 to 3230)

24 (Pages 3231 to 3234)

25 (Pages 3235 to 3238)

26 (Pages 3239 to 3242)

27 (Pages 3243 to 3246)

28 (Pages 3247 to 3250)

29 (Pages 3251 to 3254)

30 (Pages 3255 to 3258)

31 (Pages 3259 to 3262)

32 (Pages 3263 to 3266)

33 (Pages 3267 to 3270)

34 (Pages 3271 to 3274)

35 (Pages 3275 to 3278)

36 (Pages 3279 to 3282)

37 (Pages 3283 to 3286)

38 (Pages 3287 to 3290)

39 (Pages 3291 to 3294)

40 (Pages 3295 to 3298)

41 (Pages 3299 to 3302)

42 (Pages 3303 to 3306)

43 (Pages 3307 to 3310)

44 (Pages 3311 to 3314)

45 (Pages 3315 to 3318)

46 (Pages 3319 to 3322)

A acquire 3150:15 3264:8 3271:22 3298:23 3188:13,14 3189:6

For The Record, Inc.

For The Record, Inc.

3274:3 3275:21 3207:20 3211:8 3239:25 3261:24 3190:10,24 benefits 3263:4

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.